Volume 169 — Colorado Reports

1. <bold>DIVORCE</bold> — <italic>Division of Property — Securities — Inherited — Growth —</italic><italic>Propriety.</italic> In proceeding relating to division of property, where court determined that $40,000 growth in securities was family income and used that as basis for division of property, contention of husband — that because securities were inherited property increase in value cannot be attributed to any contribution made by wife and cannot properly be taken into account in such division — is without merit; such property is not <italic>per</italic><italic>se</italic> excluded from consideration by court in making determination of property rights of parties to divorce action. 2. <italic>Property Division — Prerequisite — Wife — Contribution —</italic><italic>Unnecessary.</italic> It is not a prerequisite in a property division case that the wife show she has contributed funds to or has by her efforts helped actually to acquire specific property. 3. <italic>Property Division — Husband — Securities — Wife — Cash — Equity in</italic><italic>Home.</italic> In property division settlement, reviewing court, under circumstances of instant case, affirms that portion of court decree which awards wife securities worth $17,000 plus a $5,000 equity in home notwithstanding the fact that husband's securities had been inherited. 4. <italic>Property Division — Award — Securities — Wife — Power — Selection</italic><italic>of Stocks — Order — Error.</italic> In property division settlement involving award of portion of securities to wife, where trial court issued order empowering wife to make selection of husband's stocks from the closing price as of May 6, 1966, <italic>held</italic>, in so doing, trial court erred.<page_number>Page 50</page_number> 5. <italic>Property Division Function — Judicial Discretion.</italic> In divorce action involving property division settlement, reviewing court deems such division to be a function requiring the exercise of judicial discretion. 6. <italic>Order of Court — Payments to Wife — Confiscatory — Excessive.</italic> In divorce action, original order of court providing for payments to wife of approximately $535 per month, plus medical expenses, was arbitrary, capricious and confiscatory, since such payments were in excess of what was shown to be the average income of the family during the period of the marriage. 7. <italic>Award — Impoverish — Husband — Prohibition.</italic> A court cannot make an award in a divorce action which will impoverish the husband. 8. <italic>Property Division — Alimony — Child Support — Original — Order —</italic><italic>Clarity — Modification.</italic> In divorce action involving orders of property division, alimony and child support, reviewing court notes that original order of court is no longer in effect, nevertheless, for clarity, it is ordered modified from date of decree; hence, any arrearage accumulated is to be adjusted by court on basis of $215 for child support and $135 for wife from date of divorce decree, and husband is to be credited accordingly.

1. <bold>JUDGMENT</bold> — <italic>Impeachment — Sister States — Fraud — Extrinsic — Intrinsic</italic><italic>— Distinction.</italic> A distinction between "extrinsic" and "intrinsic" fraud has been recognized and pronounced in many jurisdictions in connection with impeachment of judgments of sister states. 2. <italic>Extrinsic Fraud — Collateral Fraud — Definition — Jurisdiction —</italic><italic>Deprivation — Defense.</italic> Extrinsic fraud, sometimes called collateral fraud, has been defined a that which goes to the jurisdiction of the court, or constitutes a fraud upon the law of the forum, or which operates to deprive the person against whom the judgment was rendered of an opportunity to defend the action when he as a meritorious defense, and is such as prevents the party complaining from making a full and fair defense. 3. <italic>Intrinsic Fraud — Definition.</italic> Intrinsic fraud is defined as that which pertains to an issue involved in the original action or where acts constituting the fraud were, or could have been litigated therein. 4. <bold>DIVORCE</bold> — <italic>Property Settlement Agreement — Award of Custody — Nebraska —</italic><italic>Fraud and Duress — Intrinsic — Jurisdiction — Negative.</italic> Reviewing court characterizes fraud and duress relied upon by mother in avoidance of<page_number>Page 71</page_number> property settlement agreement and which was basis for Nebraska custody award to father as intrinsic rather than extrinsic, since it did not go to jurisdiction of court over parties or subject matter of action; nor did it operate to deceive mother concerning pendency of action or relief sought; nor did it prevent her from contesting father's claim for divorce and custody. 5. <italic>Nebraska — Failure to Assert Defense — Custody — Fraud — Relief —</italic><italic>Judgment.</italic> Where mother chose not to contest divorce action instituted in Nebraska court nor to assert her defense of fraud and duress to agreement which was the basis for the custody award by such court, <italic>held</italic>, under the circumstances, relief therefrom must be sought in Nebraska court which rendered judgment. 6. <italic>Nebraska — Jurisdiction — Decree — Award of Custody — Collateral</italic><italic>Attack — Intrinsic Fraud — Prohibition.</italic> Where Nebraska court had jurisdiction over the parties and the subject matter, is divorce decree embodying an award of custody may not be collaterally attacked on the grounds of intrinsic fraud. 7. <bold>DOMICILE</bold> — <italic>Father — Legal Custodian — Children — Forum State — Visit —</italic><italic>Mother — Consent.</italic> Where father was decreed to be legal custodian of children, the domicile of the children remained that of their father notwithstanding that the children were in another state on visit to their mother with father's consent. 8. <bold>DIVORCE</bold> — <italic>Domicile — child — Parent — Custody.</italic> In the event of divorce the domicile of the child follows that of the parent to whom custody is decreed. 9. <italic>Nebraska Court — Jurisdiction — Custody of Children — Father —</italic><italic>Colorado — Interference — Negative.</italic> Where Nebraska court had jurisdiction over parties and subject matter in a divorce action and awarded custody of children to father, <italic>held</italic>, under such circumstances trial court was correct in holding that Nebraska court's jurisdiction continued over the children, and that Colorado court should not interfere with that jurisdiction; moreover, any change of circumstances sufficient to warrant a change of custody should be presented to Nebraska court. 10. <italic>Principle of Comity — Decree — Recognition — Custody — Award —</italic><italic>Relief — Foreign Court — Emergency.</italic> The principle of comity among sovereign states to which Colorado is committed requires that it recognize<page_number>Page 72</page_number> validity of divorce decree and custody award of court of sister state which had jurisdiction over parties and subject matter of action; hence, any relief sought from such decree must be obtained in that court in absence of emergency affecting immediate needs and welfare of subject children.

1. <bold>TENANCY IN COMMON</bold> — <italic>Tenant — Acquisition — Tax Title — Exclusion —</italic><italic>Separate.</italic> A tenant in common owning an undivided interest in land can acquire an outstanding tax title in the common property to the exclusion of fellow cotenants, whose property was separately assessed. 2. <italic>Protection — Interest — Cotenant — Duty.</italic> A tenant in common can only be held bound to protect the interest of his cotenant when some duty is cast upon him with reference to such interest. 3. <italic>Aunt — Nephews — Nieces — Propinquity — Fiduciary — Acquisition —</italic><italic>Tax Title — Negative — Separate Assessments.</italic> Relationship of aunt and nieces and nephews is not such type of propinquity which establishes a fiduciary relationship burdening aunt with duty as tenant in common with such relatives to acquire outstanding tax title for and on behalf of such cotenants; especially, where record reflects that the separate interests involved were separately assessed.

1. <bold>CARRIERS</bold> — <italic>Permission — Public Utilities Commission — Sale and Transfer</italic><italic>— Certificate of Authority — Propriety.</italic> Public Utilities Commission acted correctly in allowing the sale and transfer of common carrier certificate of authority to haul general commodities. 2. <italic>Common — Sale of Certificate — Proper — Approval — Public Utilities</italic><italic>Commission.</italic> The right of an applicant to sell its common carrier certificate of authority is by law deemed subject to transfer as any other property, although approval of Public Utilities Commission is additionally required. 3. <italic>Common — Sale of Certificate — Transferor — Transferee — Fitness —</italic><italic>Findings — Support — Record.</italic> Record fully supports findings of Public Utilities Commission that transferor of common carrier certificate of authority was in good standing before Commission and that transferee was adequately financed, properly managed and sufficiently experienced in the conduct of motor carrier general commodity transportation service and was<page_number>Page 160</page_number> fit and proper to conduct and manage the business. 4. <italic>Sale — Transfer — Certificate of Authority — Protest — Intervenor —</italic><italic>Private — Denial — Propriety.</italic> In proceedings before Public Utilities Commission involving sale and transfer of common carrier certificate of authority, content of protest and proffered evidence of private carrier intervenor's contract operations demonstrated correctness of Commission's ruling in denying request to intervene and in striking the protests. 5. <bold>PUBLIC UTILITIES COMMISSION</bold> — <italic>Intervenors — Types — Statute.</italic> C.R.S. 1963, 115-6-9(1) contemplates two types of intervenors: (a) those which the Commission may permit to intervene, and (b) those who will be interested in or affected by any order that the Public Utilities Commission may make. 6. <bold>ADMINISTRATIVE LAW AND PROCEDURE</bold> — <italic>Public Utilities Commission —</italic><italic>Authority — Statute — Promulgation — Rules.</italic> In aid of and augmenting applicable statute, the Public Utilities Commission, pursuant to the authority granted to it, can promulgate administrative rules of practice and procedure. 7. <bold>CARRIERS</bold> — <italic>Private — Not Directly Affected — Transfer — Certificate —</italic><italic>Intervention — Right — Negative.</italic> When not directly affected, a private carrier cannot, as a matter of right, intervene in a proceeding involving the transfer of a common carrier certificate. 8. <italic>Private — Competition — Common — Protection — Right — Negative.</italic> Under Colorado law a private carrier has no legal right to be protected from lawful competition from a common carrier. 9. <italic>Private — Protection — Competition — Negative.</italic> A private carrier, since it has no obligation to serve the public, is not entitled to protection from competition. 10. <italic>Public Convenience and Necessity — Common — Authority — Service.</italic> If public convenience and necessity shows a need for the common carrier service, it is the public policy of the state that the common carrier is entitled to authority to serve that need. 11. <italic>Statute — Absence — Protection — Competition — Injury — Lack of</italic><italic>Standing — Certificate — Sale — Violation — Constitution — Lack of Merit.</italic> In the absence of statutory provisions reflecting a legislative purpose to<page_number>Page 161</page_number> protect certain competitive interests, an economic injury which result from lawful competition cannot in and of itself confer standing on the injured business; hence, contention of private carrier — that Public Utilities Commission's decision approving sale and assignment of common carrier's certificate of authority to haul general commodities violated its constitutional rights not to be injured in its business operation — is without merit. 12. <italic>Private — Intervenor — Protection — Negative — Common — Lack of</italic><italic>Interest — Transfer — Certificate.</italic> Where intervenor, as private carrier, had no right to protection from competition by common carrier or its successors in interest it had no legal interest or right which it could assert in a proceeding involving the transfer of a common carrier certificate. 13. <italic>Findings — Hauling — Broad Range — Acceptance — Freight — Tariffs</italic><italic>— Record — Support.</italic> Findings of Public Utilities Commission — that common carrier which sought to transfer its common carrier certificate of authority to haul general commodities had carried on business of hauling broad range of commodities; that it accepted all freight tendered to it within the scope of its operating authority; and that it had participated in general commodity tariffs — are fully supported by the record. 14. <bold>AUTOMOBILES</bold> — <italic>Public Utilities Commission — Transfer — Certificate —</italic><italic>Imposition — Commodity — Restrictions — Negative.</italic> Reviewing court is of the view that Public Utilities Commission should not, on transfer of common carrier certificate of authority to haul general commodities, impose commodity restrictions when a bona fide motor carrier operation is being carried on by transfer or at time of transfer. 15. <italic>General Commodity Certificate — Refusal to Fragmentize — Public</italic><italic>Utilities Commission — Propriety.</italic> Where Public Utilities Commission refused to fragmentize general commodity certificate transferred from common carrier — which was carrying on bona fide motor carrier operation at time of transfer — to transferee which intended to continue transferor's business without interruption and would, under its certificate, accept and carry any and all commodities requested by shipping public, <italic>held</italic>, under the circumstances, Commission acted correctly in refusing to fragmentize general commodity certificate.

1. <bold>MUNICIPAL CORPORATIONS</bold> — <italic>Charter Amendment — County Court — Original</italic><italic>Jurisdiction — Constitutional.</italic> Charter Amendment No. 1, which confers upon the County Court "original jurisdiction of all cases arising under the Charter of ordinances of the City and County of Denver," is constitutional. 2. <italic>Home Rule Cities — Authority — Creation — Police and Municipal</italic><italic>Courts — Jurisdiction.</italic> Under section 6 of article XX of the Colorado constitution specific authority is conferred upon home rule cities to create police and municipal courts and to define the jurisdiction thereof. 3. <bold>JUDGES</bold> — <italic>Municipal — Function — Dual Capacity — Charter and Ordinances</italic><italic>— State Law.</italic> The validity of municipal judges functioning in a dual capacity, exercising jurisdiction under a municipal charter and ordinances, and also under state laws as justices of the peace is well-established under Colorado jurisprudence. 4. <bold>COURTS</bold> — <italic>County Judges — Jurisdiction — State — Municipal — Weights and</italic><italic>Measures Ordinance — Violation — Trial Propriety.</italic> Express authorization exists for county judges to exercise not only state jurisdiction but also municipal jurisdiction, if provided by charter and ordinance; hence, plaintiffs' contention that county court in present circumstances was<page_number>Page 346</page_number> without jurisdiction to try them on charges of violating the weights and measures ordinance is untenable. 5. <bold>WEIGHTS AND MEASURES</bold> — <italic>Statute — Cities and Towns — Power to Regulate —</italic><italic>Repeal — Negative.</italic> The weights and measures statute did not repeal earlier statute granting cities and towns power to regulate weights and measures. 6. <italic>Regulation — Police Power — State — Municipal.</italic> The regulation of weights and measurers to prevent misrepresentations and frauds in commercial transactions between vendor and vendee may be regulated under the police power at the state level and concurrently at the municipal level, providing there are no conflicting regulatory provisions. 7. <bold>MUNICIPAL CORPORATIONS</bold> — <italic>Weights and Measure Statute — Ordinance — Lack</italic><italic>of Conflict.</italic> Weights and measures statute which was broader in scope and imposed regulations on products which were not specifically regulated by city weights and measures ordinance was not inconsistent with or in conflict with ordinance so as to render ordinance invalid. 8. <bold>STATUTES</bold> — <italic>Consistent — Existence — Side by Side.</italic> If two legislative acts are consistent, they can exist side by side. 9. <bold>WEIGHTS AND MEASURES</bold> — <italic>Ordinance — Valid — Statute — County Court —</italic><italic>Jurisdiction — Trial — Violation.</italic> Reviewing court is of the view that Denver Weights and Measures ordinance is a valid exercise of legislative power granted to it by the state, in a legitimate area of local concern, and has not been rendered ineffective, null and void by the 1953 enactment of the Weights and Measures statute; hence, County Court, having jurisdiction, may proceed to try question of whether plaintiffs were guilty of violating provisions of the Weights and Measurers ordinance.

1. <bold>DRUGS AND DRUGGISTS</bold> — <italic>Cannabis — Marijuana — Addictive — Inclusion —</italic><italic>Equal Protection — Due Process — Denial — Negative.</italic> The inclusion of cannabis (marijuana), a narcotic drug, in the same category as <italic>addictive</italic> drugs such as coca leaves, opium, and other drugs <italic>more potent</italic> in destructive potential, is not so arbitrary and unreasonable as to deny defendants the equal protection of the law and due process of law. 2. <bold>CONSTITUTIONAL LAW</bold> — <italic>Legislature — Adoption — Classification — General</italic><italic>Welfare — Proper Purpose — Equality.</italic> The legislature is free to adopt any classification it deems appropriate to promote the general welfare, so long as the classification bears a reasonable relation to a proper legislative purpose and is neither arbitrary nor discriminatory and operates equally on all persons within the classification. 3. <italic>Legislature Classification — Recognition — Courts.</italic> Courts recognize the presumption which operates in favor of the reasonableness of a legislative classification. 4. <italic>Legislative Classification — Facts — Assumption — Courts — Uphold.</italic> If any state of facts can reasonably be conceived that will justify a<page_number>Page 522</page_number> legislative classification, the existence of these facts will be assumed by the courts in order to uphold the legislation. 5. <bold>DRUGS AND DRUGGISTS</bold> — <italic>Marijuana — Legislature — Classification —</italic><italic>Felony — Misdemeanor — Propriety.</italic> Action of legislature — in classifying marijuana with those drugs the possession of which constitutes a felony rather than with those the possession of which constitutes a misdemeanor — was not arbitrary. 6. <bold>CONSTITUTIONAL LAW</bold> — <italic>Marijuana — Possession — Use — Felon —</italic><italic>Misdemeanant — Equal Protection — Denial — Negative — Differentiation —</italic><italic>Rational.</italic> In prosecution involving the unlawful possession of marijuana, defendant's contention — that he was denied the equal protection of the law contrary to federal and state constitutions because as a convicted <italic>possessor</italic> he was made a felon whereas as a convicted <italic>user</italic> of the same drug he would only be a misdemeanant — is without merit, since reviewing court is of the view that there is a rational basis of differentiation. 7. <bold>CRIMINAL LAW</bold> — <italic>Single Transaction — Statute — More Than One — Separate</italic><italic>Offenses — Each — Prosecution.</italic> A single transaction may give rise to the violation of more than one statutory provision, and in such a situation separate offenses are perpetrated, each of which may be subject to prosecution. 8. <bold>CONSTITUTIONAL LAW</bold> — <italic>Prosecution — Discretion — One or Both — Distinct</italic><italic>Offenses — Single Transaction — Proper Delegation — Denial of Equal</italic><italic>Protection — Negative.</italic> The fact that a prosecutor has the discretion to prosecute a defendant under one or both of two distinct offenses, which arise from a single transaction, does not constitute an unconstitutional delegation of legislative authority, or a denial of equal protection of the laws. 9. <bold>CRIMINAL LAW</bold> — <italic>Same Act — Violation — Two Distinct Provisions — Test —</italic><italic>Determination — Two Offenses — One — Proof of Fact.</italic> Where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not. 10. <bold>COURTS</bold> — <italic>Colorado Narcotic Drugs Act — Use and Possession — Two</italic><italic>Distinct Offenses — Test — United States Supreme Court.</italic> Reviewing court is of the view that the use and possession sections of Colorado Narcotic Drugs<page_number>Page 523</page_number> Act — under the test outlined in the United States Supreme Court case of<italic>Blockburger v. United States</italic> — define two distinct offenses. 11. <bold>CONSTITUTIONAL LAW</bold> — <italic>Narcotic Drugs Act — Constitutional.</italic> Trial court erred, as a matter of law, in holding C.R.S. 1963, 48-5-2 Colorado Narcotic Drugs Act) unconstitutional.