Section 5 reads as follows: "The paroled convict who may, upon the order of the Governor, be returned to the Penitentiary, shall be retained therein according to the terms of his original sentence, and in computing the period of his confinement the time between his release upon said permit and his return to said Penitentiary shall not be taken to be any part of the term of the sentence." Section 6 reads: "This act shall not be construed in any sense to operate as a discharge of any convict paroled under its provisions, but simply a permit to any such convict to go without the enclosure of the Penitentiary, and if while so at large he shall so behave and conduct himself as not to incur his reincarceration, then he shall be deemed to be still serving out the sentence imposed upon him by the court, and shall be entitled to good time, the same as if he had not been paroled. But if the said paroled prisoner shall be returned to the said Penitentiary, as hereinbefore provided, then he shall serve out his original sentence as provided for in section 5 of this act." From the above it will be seen that the paroled convict remains in the legal custody of the commissioners of the Penitentiary until the expiration of his maximum sentence, less the time credited for good behavior, and, necessarily, he must first finish this term before beginning another, unless he be pardoned or tried for another crime and sentenced to death. The fact of his being in legal custody under the first sentence, however, will not prevent his trial and conviction for any other crime committed during this time, nor will it prevent the trial court from pronouncing another sentence against him. 1 Bish. New Crim. Law, 953. 25 Am. & Eng. Enc. Law (2d Ed.), 303. 2 M. A. S., 1453, provides that "for the purposes of this act, whenever any convict shall have been committed under several convictions with separate sentences, they shall be construed as one continuous sentence." The provisions of this act would seemingly make it clear that, in a case of this kind, the two separate convictions and sentences should be construed as one continuous sentence, the second to begin at the termination of the first, were it not for the fact that, in the case of In re Packer, 18 Colo., 525, a case in which our Supreme Court affirmed the right of a trial court to impose a sentence for each conviction of a defendant where convicted for five different offenses at the same trial, the court, in referring to this section, at page 530, uses the following language: "The provision is only pertinent to the question under consideration in this case, in so far as it shows a legislative recogni tion of the power of the courts to commit under several convictions, with separate offenses. This can only be carried into effect by making each sentence, after the first, commence at the expiration of the previous sentence." Again, at page 531: "The conclusion that one term of imprisonment may be made to commence when another terminates, is not only supported by reason, but, we think, by the decided weight of authority, as will appear from the following citations." Thus implying that the above section is only declaratory of the common law rule. A like interpretation of a similar statute was also given by the Supreme Court of Missouri in Ex parte Jackson, 96 Mo., 116, 119. The rule at common law seems to have been that the court in pronouncing the different sentences must state when each sentence begins; otherwise they would all run concurrently. U. S. vs. Patterson, 89 Fed., 775. In re Jackson, 3 McArthur (D. C.), 24. However, the contrary of this rule has been held under statutes quite similar to ours in the following cases: Ex parte Turner, 45 Mo., 331. Ex parte Durbin, 102 Mo., 100. On account of this conflict of authorities, and the further fact that in the Packer case our court did not directly pass upon this point, as it was not a question in issue therein, I do not feel at liberty to advise you that the rule has been definitely settled in this State, and until the same has been done, I would recommend that paroled convicts who are convicted and sentenced for crimes committed during their term, should be required first to serve out such term, and then begin the term under the later sentence. Yours truly, N. C. MILLER, By I. B. MELVILLE, RELIEF BILL. A relief bill for a person injured by being compelled to enter a known dangerous place, while confined in the Penitentiary, is a valid claim against the State and not contrary to the Constitution. Denver, Colo., December 2, 1903. HON. JOHN A. HOLMBERG, Auditor of State, HON. WHITNEY NEWTON, State Treasurer, State Capitol. Gentlemen-In the matter of House Bill No. 220, for the relief of Louis Bergonia, I have had the same under consideration for several months and have arrived at the following conclusion: The facts in this case are as follows: Bergonia was incarcerated in the State Penitentiary at the time of the injury, and at such time was "under the absolute control of the State." Bergonia was ordered by an officer of the Penitentiary to enter an excavation in the rock where quarrying was conducted. He was compelled to go into this place by an order of an officer which he was powerless to resist. The place was supposed to be one of danger, and Bergonia had remonstrated with the officer about entering. On the day previous another convict had refused to enter this place, and had received severe punishment for his disobedience. Bergonia fearing like treatment entered the place, and while at work received the injury which resulted in the loss of a leg. This relief bill is suspected of being in violation of the Constitution. "No appropriation shall be made for charitable, industrial, educational or benevolent purposes to any person, corporation or community not under the absolute control of the State, nor to any denominational or sectarian institution or association." Section 34, article V, Constitution. "No bill shall be passed granting any extra compensation to any public officer, servant or employe, agent or contractor after services shall have been rendered or contract made, nor providing for the payment of any claim made against the State without previous authority of law." Section 28, article V, Constitution. The appropriation under consideration is not made for charitable, industrial, educational or benevolent purposes, and, therefore, the first section quoted does not apply. The bill is compensation to Bergonia for the damage done him by the State. The other constitutional provision is intended to prevent extra compensation to any public officer, servant or employe, agent or contractor, after services have been rendered or a contract made. It is intended to prevent any increase of compensation to such persons after a contract relation has been entered into. The latter clause prohibits the payment of any claim made against the State without previous authority of law. It prohibits State officers from voluntarily making contracts which create obligations against the State, when no appropriation or authority has been specially conferred upon them for that purpose. For instance, an additional person could not be employed in the Attorney General's office, and thus an obligation be created which would be binding upon the part of the State to pay. The Governor could not buy a piece of land for any of the State institutions and bind the State to pay for it. This provision prohibits officers of the State from entering into an agreement by which the State will be obliged to pay a debt. It is intended as an absolute limitation upon the part of the agents of the State to contract any debts. In my judgment, it has no reference whatever to a condition like that of Bergonia, where the officers of the State compelled him, over his objction, to enter into a place of known danger. I do not think the State is prohibited from compensating him for such injury. Such an idea is not within the terms of the provisions of the Constitution referred to. It does not place a limitation upon the power of the Legislature of the State which compels it to do an injustice. The Legislature has plenary power, except when limited. The facts in this case are different from all others that have been considered by this department, or by the courts. The contract relation did not exist between Bergonia and the State, nor did Bergonia have any option in undertaking the duty which he assumed; nor does it come within such cases as members of a posse comitatus. Relief bills in favor of a wife whose husband joined a posse comitatus, under orders, are denied as being unconstitutional. Every citizen of the State assumes the obligation of joining a posse comitatus when ordered. The State may require such service of its citizens without assuming any obligation to pay for damage incurred by those who enter. It is an incident of citizenship and the State has the right to require the service without assuming any obligation. But there is no moral or legal right on the part of the State, through its officers, to compel a convict to enter a place of known danger, and then take away from the State the right to compensate in case of injury. Such a case does not come within any duty the citizen may owe the State, nor within any other cases which have been declared illegal by this department or the courts. I am of the opinion that the appropriation is compensation for damage done Mr. Bergonia; that it is not charity or benevolence. It is equally as clear that it does not come under the other constitutional provision, for it does not relate to any contract, and the last clause of section 28, article V, only prohibits an officer or agent of the State creating a liability against the State without previous authority, and does not at all refer to the State paying for damages when the Legislature deems it expedient so to do. I am therefore of the opinion that the appropriation is valid and should be paid from the class to which it properly belongs. Respectfully, PUBLIC DOMAIN. N. C. MILLER, Public domain, as used in our statute, embraces all land belonging to the United States government which has not been granted to private owners. County commissioners can not lay out road over State lands without permission from State Land Board. E. E. HUBBEL, ESQ., Pueblo, Colo. Denver, Colo., April 16, 1904. Dear Sir-In reply to your inquiry as to the meaning of the phrase "public domain," as used in our statutes, I beg to say that the commonly accepted meaning is that the term embraces all the lands belonging to the United States government which have not been granted to private owners. Black's Law Dictionary, 962. I think this is the construction intended to be given it as used in section 3931 of Mills' Annotated Statutes, although the United States Land Offices require a survey and a map or plat to be filed in the Land Office before highways, etc., are 'recognized by the department. |