charge the lien. To state the proposition is without a license, the tax, so far as this act to answer it. is concerned, might never be collected. If Judgment reversed, with directions to dis the licensing of motor vehicles were, by charge the writ. Upon the first point, the sufficiency of the title of the act, the Chief Justice dissents. TELLER, C. J. (dissenting). I am clearly of the opinion that the act in question is unconstitutional because in violation of section 21 of article 5 of the state Constitution, the pertinent part of which reads as follows: "No bill, except general appropriation bills, shall be passed containing more than one subject, which shall be clearly expressed in its title." This constitutional provision, which appears, in substance, in many of the state constitutions, has been held to be intended to enable legislators, and the people at large, as well, to learn from the title of a bill what is the subject of the proposed enactment. This subject must be determined from the title, and not from the body of the act, as this court has said, and, if the subject does not "clearly" appear, the constitutional requirement has not been complied with. There is a distinction, recognized by the authorities, between the subject of an act and its object. Provisions of an act may be in aid of its object, yet not a part of, or germane to the expressed subject. While it is true, as the majority opinion states, that the purpose of the act—that is, its object-is to aid in enforcing collection of taxes on motor vehicles, the subject of the act is the licensing of motor vehicles. This will clearly ap pear from a study of the whole act, only a part of which is summarized in the majority opinion. While the title makes "taxation" the subject, the act contains no provision for taxation, as the term is commonly understood, and defined in the lexicons. It merely makes the payment of taxes, levied on motor vehicles, under existing laws, a condition of licensing them. No one reading this title would, for a moment, suppose that it prescribed the conditions upon which a motor vehicle license could be obtained. One intending to apply for such license, and reading the title of this act, would not regard it as having any bearing upon what he had in mind. On the other hand, he would know already that the vehicle was subject to taxation, and that the tax would become a lien upon the vehicle, if not paid. In short, the act, under a title referring only to taxation, provides the procedure for obtaining a motor vehicle license. It gives the vehicle owner no new information as to his duties as taxpayer. It contains no provision aimed at the ultimate collection of the tax, showing that to be the subject of legislation. If the owner of a motor vehicle sees fit to let it go unused, and common understanding, connected with the subject of general taxation, it might be said to be germane to the title of this bill; but it clearly is not so connected. The trial court was therefore right in holding the law unconstitutional. THURINGER v. BONNER. (No. 10641.) (Supreme Court of Colorado. Feb. 4, 1924.) 1. Attachment 7-Rightly dissolved if action ex delicto. An attachment was rightly dissolved if the action was ex delicto under Code, § 97. 2. Pleading 49-Whether action ex contractu or ex delicto determined from complaint. Whether an action is ex contractu or ex delicto must be determined from the complaint. 3. Action 27(1)-Attachment 7-Action held ex delicto and attachment rightfully dissolved. Complaint, alleging that defendant assigned interest in claim to plaintiff and agreed not to settle without his knowledge and approval, and thereafter recovered judgment on the claim and without knowledge or approval of plaintiff settled the claim, received a large sum of money therefor, and refused to pay any part of it to plaintiff, and that defendant made settlement without authority, maliciously and fraudulently intending to convert the same, etc., and asking exemplary damages and a body execution, held of C. L. §§ 5964 and 6307, and an attachment to allege a cause of action ex delicto in view was rightfully dissolved. Department 2. Error to District Court, City and County of Denver; Henry J. Hersey, Judge. Suit by C. W. Thuringer against O. H. Bonner. Attachment dissolved, and plaintiff brings error. Supersedeas denied, and judgment affirmed. John Hipp, of Denver, for plaintiff in er ror. Carlson & Erickson and W. R. Ramsey, all of Denver, for defendant in error. DENISON, J. Thuringer brought suit against Bonner in aid of which an attachment was issued which was afterwards dissolved. This we held was a final judgment subject to writ of error. Thuringer v. Bonner, 74 Colo., 219 Pac. 1078. The dissolution is assigned as error. [1, 2] The ground upon which defendant in error claims the attachment was rightly dissolved is that the action is ex delicto. The ground is good if the action is so. The Donald Co. v. Dubinsky (Colo. Sup.) 219 Pac. 209; Code C. L. § 97. Whether an action is ex contractu or ex delicto must be determined from For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (222 P.) the complaint. 1 C. J. p. 1015, § 138; p. 1039, plaintiff and did so unlawfully, fraudulently § 168. At common law this question was and wrongfully convert the same to his own easily answered. Under the Code it is some- use," to the exclusion of the rights of plaintiff. times difficult. Especially is this true where, as in the present case, facts sufficient to constitute a cause of action ex contractu are alleged by way of inducement to the allegations of tort (similar cases are not very uncommon; one is Harkison v. Harkinson, 101 Fed. 71, 41 C. C. A. 201), and while the cases state general principles pretty consistently, they are not in accord in results. In the present case, however, there can be no doubt that the action is ex delicto. The demand for judgment is for $7,071.10 actual damages "sustained because of the wrongful acts of defendant hereinbefore set forth," for $5,000 exemplary damages, that defendant may be adjudged to have been guilty of malicious fraud and willful deceit, and that plaintiff may have execution against his body. There is no escape from the conclusion that this is an action in tort. Neither exem body is consistent with an action upon contract. C. L. §§ 5964 and 6307. The courts have gone far in holding actions to be in contract, even permitting an averment of fraudulent conversion, if such act amounted to a breach of the alleged contract. Austin v. [3] The complaint alleges that the defend-plary damages nor execution against the ant, by written agreement, assigned to plaintiff an interest in a claim against one Sandburg and agreed not to settle without the knowledge and approval of plaintiff; that the defendant thereafterwards recovered judgment on the claim against Sandburg and then, without knowledge or approval of plain-Rawdon, 44 N. Y. 63, 69; Tugman v. Natiff, settled the claim, entered satisfaction of the judgment, received a large sum of money therefor, and refused to pay any part of it to the plaintiff. So far it is a complaint upon contract. But it then goes on: "That defendant made said settlement of the judgment above referred to as hereinbefore alleged, and received the money and property rights therefor, paid, assigned and turned over to him by the said John Sandburg, without any right or authority so to do from plaintiff, and maliciously and fraudulently intending to convert the same and all thereof to his own uses and to deprive plaintiff of his rights, interest and share thereof and therein, and did so fraudulently convert said judgment and all thereof, and all of the proceeds of the settlement thereof to his own uses in utter disregard of the rights of plaintiff therein." And it further alleges that in said settlement the defendant released attachments of property belonging to Sandburg; that the judgment against Sandburg was of the real value of $27,192.20; and that tional Steamship Co., 76 N. Y. 207. But here we have more careful statements to bring the case within the above cited statutes, which require tort to be stated, and prayers pursuant to those statutes for judgment which can be based on tort alone. Supersedeas denied, and judgment affirmed. The CHIEF JUSTICE and WHITFORD, J., concur. W. A. GENTRY, Appellee, v. James C. DAVIS, Additional opinion on rehearing. For former opinions, see 222 Pac. 769. W. W. Brown, A. G. Armstrong, and E. L. Burton, all of Parsons, for the appellant. F. E. Dresia and Chas. Stephens, both of Columbus, Paul MacCaskill, of Parsons, and Frank Doster and J. E. Addington, both of Topeka, for appellee. HOPKINS, J. In conformity with an application for an additional statement of facts, the following may be considered as part of the opinion: "By the fraudulent conduct of defendant hereinbefore set forth this plaintiff was fraudulently deprived of his interest therein to his damage in the sum of $7,071.10; that * * the defendant was actuated by a malicious and fraudulent intent to defraud and injure the plaintiff, and that the injury complained of herein was attended by circumstances of fraud and malice, and a wanton and reckless disregard of the rights of plaintiff, * that The plaintiff was a locomotive fireman in the defendant was guilty of malicious fraud the employ of the defendant company. He was and willful deceit, and maliciously and fraudu-injured while on a trip from Muskogee, Oklalently took and received money and other property of great value in the settlement of the judgment herein before referred to * * for the purpose of converting the same to his own exclusive use in fraud of the rights of homa, to Parsons, Kansas. His train was engaged in interstate commerce. The action was brought under the federal employers' liability act. All the Justices concurring. END OF CASES IN VOL. 222 INDEX-DIGEST KEY NUMBER SYSTEM) THIS IS A KEY-NUMBER INDEX It Supplements the Decennial Digests, the Key-Number Series and ABATEMENT AND REVIVAL. II. ANOTHER ACTION PENDING. 8 (8) (Wash.) Prior action between same Rule as to necessity of obtaining rights in V. DEATH OF PARTY AND REVIVAL OF (A) Abatement or Survival of Action. 52 (Okl.) All actions survive which sur- At common law, cause founded solely in tort Acts founded on contract survive against ex- II. OPERATION AND EFFECT. ACTION. 1. GROUNDS AND CONDITIONS PRE- CEDENT. 13 (Okl.) Right to recover lands for fraud AGENCY. See Principal and Agent. ALIENATING AFFECTIONS. creditors or purchasers.-Davis v. Robedeaux, See Husband and Wife, 333-335. 990. II. NATURE AND FORM. ALTERATION OF INSTRUMENTS. 24(1) (Or.) Joinder of cross-action against 322. 25 (2) (Colo.) Action on policies is action See Carriers, ANIMALS. 230; Railroads, 415-446. 25(3) (Wash.) Equitable relief not availa- 609. 27(1) (Colo.) Action held ex delicto.- Evidence held insufficient to overcome pre- 30 (N.M.) Code of Civil Procedure does-Id. III. JOINDER, SPLITTING, CONSOLIDA-ing stock on uninclosed lands of another.-Har- APPEAL AND ERROR. attacked at trial.-James v. White, 506; Shack- Proper method of raising objection that evi- 238(2) (Okl.) Refusal of judgment not- See Certiorari; Criminal Law, ~1035-1186;239 (Utah) Absence of motion to retax For review of rulings in particular actions or III. DECISIONS REVIEWABLE. 87 (1⁄2) (Okl.) No appeal from order on mo- Denial of motion to suspend county judge IV. RIGHT OF REVIEW. 154(4) (Or.) One requesting decree can- Decree rendered on oral stipulations is con- AND RESERVATION V. PRESENTATION (A) Issues and Questions in Lower Court. 171(1) (Okl.) Appellant may not change of receiver's costs presents nothing for review.- 242(1) (Or.) Request for ruling, adverse 248 (Okl.) Errors in lower court not con- 260(1) (Okl.) Errors not considered unless 263(1) (Okl.) Exceptions must be taken 263(1) (Wash.) No review of errors in 263(3) (Wash.) No review of errors in re- 265(3) (Mont.) Statutes as to want of 269 (Or.) Request for ruling, adverse rul- 272 (2) (Okl.) Exceptions to written in- 273(5) (Okl.) Exceptions to written in- 273(9) (N.M.) General exception held to (D) Motions for New Trial. 173(6) (Ariz.) Question of violation (B) Objections and Motions, and Rulings Thereon. 301 (Wyo.) Overruling motion to dismiss VI. PARTIES. 205 (Kan.) Proof of what testimony would 1041. 221 (Okl.) Judgment not reversed for in- 221 (Or.) Request for ruling, adverse rul- 327 (2) (Wyo.) Necessary parties respond- ent to VII. REQUISITES AND PROCEEDINGS 356 (Wyo.) Appeal dismissed where record |