pledge, or as security for money or other thing advanced to the pawner or pledger, shall be held and is hereby declared and defined to be a pawn broker." ordinance than the section under which this action was brought, namely, section 1390 of the Municipal Code, hereinbefore quoted. It is conceded that the loan society, above [2] The plaintiff in error claims that this named, is and was a pawnbroker as defined section of the Municipal Code is in conflict by the ordinance, and that, as charged, it vio- with the statute because "the statute defines lated the ordinance by conducting the busi-a pawnbroker as one making loans ness of a pawnbroker without having first procured a license from the city. who charges as much as 3% per month in terest," while "the ordinance declares every pawn This action was instituted in the municipal one who engages in the business of receiving court, where the defendant loan society was property in pledge or as security for money or tried and found guilty as charged. An appeal broker, regardless of the rate of interest other thing advanced * was taken to the county court, where, upon charged." It is apparent from a comparison trial, a like result was reached and a judg- of the ordinance with the statute that a perment was rendered in favor of the plaintiff below, the city and county of Denver. The son, firm, or corporation may be a "pawnloan society, defendant below, brings the case broker," within the definition given by the here for review, and asks that the writ of er- ordinance, and yet, because not "charging as ror herein be made a supersedeas. The vari- much as the maximum rate of interest," not ous assignments of error are all made or bas-be a pawnbroker within the meaning of the ed upon the theory that the ordinance in question is invalid. It is contended by the loan society, the plaintiff in error, that the ordinance is in conflict with the statute on pawnbrokers. Chapter 66, p. 250, Session Laws 1897. This is the principal question presented for our determination. The first section of the statute provides that: It shall be unlawful for any corporation, company or person to establish or conduct the business of pawnbroker within the state of Colorado, unless such corporation, company or person shall have first procured a license from the proper authorities of the town or city in which they are engaged in such business," and shall furnish a bond. Section 4804. R. S. 1908; section 5393, Mills' Ann. Sts. 1912. The eighth section of the act provides, in substance, that no pawnbroker shall charge a greater rate of interest upon money advanced than that of 3 per cent. per month. Section 4811, R. S. 1908; section 5400, Mills' Ann. Sts. 1912. Section 16 of the pawnbroker statute provides that: "Any person or persons loaning money on personal property and charging as much as the maximum rate of interest herein provided, shall be deemed a pawnbroker, and such person doing business without a license shall be guilty of a misdemeanor. * Section 4819, R. S. 1908; section 5408, Mills' Ann. Sts. 1912. statute. The plaintiff in error, according to the evidence, charges interest on its loans at a rate not exceeding 2 per cent. per month of the amount of money actually loaned or advanced. Since the loan society did not charge as much as the maximum rate of interest, or 3 per cent. per month, it was not a "pawnbroker" within the meaning of the statute, but was a pawnbroker as defined by the ordinance. The statute, however, did not prevent the loan society from being deemed, or being in fact, a pawnbroker. When the statute designates who "shall be deemed to be a pawnbroker" it merely refers to the class of pawnbrokers who are affected by the statute, or to the class of persons who are to be dealt with by the statute as pawnbrokers. Other pawnbrokers are in no way affected by the statute. The definition given by the statute is not made a general rule of law. It applies no further than to the statute itself. The result is that by this and other sections of the pawnbroker statute the state exercises the power to regulate and control the business or avocation of pawnbroking, but only where such business is conducted by pawnbrokers charging as much as 3 per cent. per month interest. The state is not attempting to regulate or control the business of pawnbroking [1] The plaintiff in error refers to numer- where such business is carried on by loanous sections of the statute and of the or- ing money on personal property at a rate of dinance, and contends that there is "a sharp interest less than 3 per cent. per month. It conflict" between the provisions of the statute follows that if a municipality requires a and those of the ordinance. The section of license of pawnbrokers belonging to the class the ordinance under which the plaintiff in er-last described, and by ordinance attempts to, ror was prosecuted is complete within itself, or does, regulate and control their business, even when the other sections of the ordinance it does nothing in conflict with the statute, which relate to the rate of interest to be charged by a pawnbroker and to the time and manner of sale of a pledge are deemed to be stricken out. The ordinance, therefore, even if invalid as to certain parts, may still be valid so far as its licensing provisions are concerned. Vinsonhaler v. People, 48 Colo. 79, 81, 108 Pac. 993. We need not, therefore, consider or examine any other part of the because there is no statute governing that part of the pawnbroking business. Neither does the municipality interfere with the state's regulation and control of the business of pawnbroking. The ordinance is neither inconsistent nor in conflict with the statute. The statute requires pawnbrokers who charge as much as 3 per cent. per month interest to be licensed; so does the ordi "The business of pawnbrokers, because of the facility it furnishes for the commission of crime and for its concealment, is one which belongs to a class where the strictest police regulation may be imposed." nance, because it requires all pawnbrokers | 163, page 861, of the volume just cited, it to be licensed. The ordinance does not ex- is said: clude, but does include, those who are pawnbrokers under and governed by the statute. If the statute had provided that no license should be imposed on pawnbrokers except those charging the maximum of 3 per cent. per month interest, then there might have been a conflict between the statute and the ordinance, but no such provision appears in the statute, nor can it be implied from the language thereof. It is well settled that the mere fact that the state, in the exercise of the police power, has made certain regulations does not, however, prohibit a municipality from exacting additional requirements. So long as there is no conflict between the two, and the requirements of the municipal by-law are not in themselves pernicious, as being unreasonable or discriminatory, both will stand. 19 R. C. L. 804, § 110. Thus a municipal ordinance making it an offense to permit gaming in the place or house of any person is not invalid because the state had enacted a statute which prohibited such acts in public places. Greenville v. Kemmis, 58 S. C. 427, 36 S. E. 727, 50 L. R. A. 725. An ordinance declaring it unlawful for an automobile to be driven on And in section 258 of the same work is the following: "Among the occupations which have been held it is said: "The law recognizes that the business of a pawnbroker.is of such a character as to justify and imperatively require rigid police supervision, and as a means to this end a permit or li cense to conduct such business may be demanded." hold that section 1390 of the Municipal Code For the reasons hereinbefore stated, we of 1906, of the city and county of Denver, being the section of the ordinance involved in this case, is valid, and that no error was committed by the county court in finding and determining that plaintiff in error was a pawnbroker under the ordinance and subject to the penalties provided for the violation of the section of the ordinance in question. fore be denied, and the judgment affirmed. The application for a supersedeas will there Affirmed. HILL, C. J., and BAILEY, J., concur. (64 Colo. 352) HEBER et al. v. PORTLAND GOLD MIN- public streets at a greater rate of speed than six miles per hour was held not to be in conflict with a statute prohibiting the driving of automobiles "within the thickly settled or business portion of any city at a greater speed than twelve miles per hour." Bellingham v. Cissna, 44 Wash. 397, 87 Pac. 481. There is no difference upon principle between an ordinance enlarging a class of acts and one enlarging a class of persons dealt with by a statute. The Legislature, while provid-| (Supreme Court of Colorado. April 1, 1918.) ing that pawnbrokers charging 3 per cent. 1. INJUNCTION 103-CRIMES. interest per month must be licensed, did not Injunction will not lie to restrain storekeepenact any law with reference to the licens-ers and assayers from carrying on the business of purchasing, knowingly, stolen ores, from ing of other pawnbrokers, nor any law pro- plaintiff's employés; this being a felony by stathibiting the licensing and regulation of such ute. other pawnbrokers. Upon the principle followed in the authorities cited, there is clearly no conflict between the statute and the ordinance involved in the instant case. The ordinance is neither inconsistent with nor repugnant to the general law, and does not in the least tend to limit or to interfere with the operation of the statute. 2. JURY 31(11)—INFRINGEMENT OF RIGHT INJUNCTION. carrying on the business of purchasing from To restrain a storekeeper and assayer from plaintiff's employés ore stolen from plaintiff's mine, such act, constituting a felony, would deny defendant the right to trial by jury. Garrigues, Allen, and Bailey, JJ., dissenting. En Banc. Error to District Court, Teller County; W. S. Morris, Judge. versed. The city has the power to legislate upon local, and municipal matters. If, as contend- Action by the Portland Gold Mining Comed by plaintiff in error, the business of pawn-pany and others against George Heber and broking is a matter of state-wide interest, others. From an order overruling demurrer this fact does not prevent such business from to the complaint, defendants bring error, Rebeing also a matter of municipal interest. The preservation of the health, safety, welfare, and comfort of dwellers in urban centers of population requires the enforcement of very different and usually much more stringent police regulations in such districts than are necessary in a state taken as a TELLER, J. The defendants in error whole. 19 R. C. L. 798, § 106. In section | brought suit against the plaintiffs in error, E. G. Vanatta, of Casper, Wyo., for plaintiffs in error. E. J. Boughton, N. Walter Dixon, and Thomas J. Dixon, all of Denver, for defendants in error. and several others who do not appear here, | or have reason to believe, were stolen." The for injunctive relief. overruling of the demurrer is assigned as error. The principal ground of demurrer argued is that the complaint does not state facts constituting a cause of action. It is not to be questioned that, where the direct and immediate purpose of a suit in equity is to protect property, an injunction may issue, although incidentally it enjoins the perpetration of a crime. [1] The complaint alleged that the plaintiffs were the owners and operators of mining and milling property in the Cripple Creek mining district; that in said district there It is objected that the purpose of the suit were many other persons and corporations is to enjoin the commission of a criminal owning and mining their properties in the offense. It is pointed out that our statutes same general way as were the plaintiffs; make the buying of stolen ore a felony, and that in the said operations the plaintiffs and that they provide an elaborate system of the mine operators have expended many recording every purchase of ore, all of which million dollars; that the said mining proper- provisions are intended to accomplish the ties contain gold bearing ores, some of which precise purpose at which this suit aims. are what is commonly known as “high grade" | Defendants in error reply that equity has ores, of great value; that said high-grade jurisdiction to enjoin an action even though ores may be distinguished by their physical it be criminal, if, at the same time, it proappearance; that since the beginning of min- tects personal or property rights. The quesing in said district they have been subject to tion here presented, then, is: Do the facts theft by employés of plaintiffs and the other alleged present a case falling within the prinmine owners to the amount of millions of ciple last stated? dollars; that large numbers of men are employed in said mines; that such thefts of ore are profitable only because of the existence of a class of assayers whose principal business is dealing in such stolen ores; that the defendants belong to said class of "high-grade assayers," and are engaged solely in buying ores which they know to have been stolen; that they encourage said employés to steal said ores, and aid and assist one another in said unlawful acts and in escaping detection therein; that they buy also from said employés precipitates, amalgam, and bullion known to have been stolen; that they do not comply with the law which requires the purchaser of ores to keep a book in which shall be recorded all the particulars of such purchases; that, unless restrained by order of court, they will continue to buy stolen ores; that, by reason of the fact that each theft is usually of a small quantity of ore, it is almost impossible for the plaintiffs to detect it at the time; that they constitute repeated trespasses that would involve plaintiffs in a multiplicity of suits to recover the amounts taken; that defendants are insolvent; that plaintiffs have no adequate remedy at law; and that defendants by their acts inflict irreparable injury upon plaintiffs. The prayer is that defendants be enjoined "from carrying on the business of purchasing knowingly stolen ores, concentrates," etc., in the said district, "and from purchasing, receiving, or in any way handling or dealing with, directly or indirectly, in said mining district, any ores, etc., * which they may know, or have reason to believe, were stolen"; and for an accounting for all stolen cres theretofore purchased. In the case at bar, plaintiffs below allege that, if the sale of stolen ores be prevented, the stealing of ores will thereby be discouraged, and plaintiffs' losses to that extent be decreased. No case is cited in which the jurisdiction of equity is sustained to protect property in this indirect manner. In the case of In re Debs, 158 U. S. 564, 15 Sup. Ct. 900, 39 L. Ed. 1092, on which de fendants in error rely, the effect of the injunctive order was direct. The defendants in that case were enjoined from obstructing interstate commerce and the carrying of United States mails. It is not authority for the proposition maintained here by defendants in error. They also rely on People ex rel. v. District Court, 26 Colo. 386, 58 Pac. 604, 46 L. R. A. 850, and quote from it as follows: "Courts of equity have no jurisdiction by injunction to restrain the commission of criminal acts which do not violate some personal or prop erty right." It is argued that the violation of plain tiffs' rights in this case is such as to bring it within the italicized portion of the above quotation. We think, however, that, for the reason above given, the case does not apply. The protection of property rights in this case appears only by a course of reasoning, to wit: That, if these defendants are prevented from buying stolen ores, the employés of plaintiffs who steal ore, finding it no longer profitable, will cease their thefts. The re terminate, but inferential only. The only actual and direct result is the enjoining of a criminal offense. A demurrer to the complaint was over-sults of the injunction are therefore not deruled, and, on defendants' election to stand upon the demurrer, judgment was entered against the plaintiffs in error, and other defendants who were in default, perpetually Defendants in error rely also upon Kirby enjoining and restraining them "from carry- v. U. P. R. R. Co., 51 Colo. 509, 119 Pac. 1042, ing on the business of purchasing knowingly Ann. Cas. 1913B, 461, in which railroad tickstolen ores, concentrates, precipitates, amal- et brokers were enjoined from purchasing gam, or bullion which they or he may know, special rate tickets. That case, however, is not in point, since it dealt, not with criminal | any degree, should receive no favor from offenses, but with acts which the court held those whose duty it is to preserve the landto be fraudulent. marks of the law. The injunction directly protected plaintiffs' rights. Every theft is an invasion of some one's property rights. The fact that in this instance an injunction is sought only against a certain class is not material. There are other lines of business in which thefts are extremely common and difficult to detect. If one class may be enjoined either directly or indirectly from stealing, other classes may be treated in the same manner. Modern penal laws are intended both to punish the criminal and to deter others from perpetrating like offenses. The purpose of the law, then, Is to accomplish the very same end which the injunction would accomplish, according to the reasoning of defendants in error. Where a criminal prosecution will effectually redress the plaintiff's wrong, he has no remedy in equity. 22 Cyc. 775. The fact that the criminal statutes are not properly enforced was urged as a ground for injunction in People v. District Court, supra. This court, in discussing that charge in the complaint, said: The plaintiffs have as adequate a remedy in the premises as have others whose property is liable to be stolen, and the complaint does not state a cause of action. The demurrer should have been sustained. GARRIGUES, ALLEN, and BAILEY, JJ., dissent. (64 Colo. 378) CORYELL v. OLMSTED et al. (No. 8951.) (Supreme Court of Colorado. April 1, 1918.) 1. FRAUDULENT CONVEYANCES 286(3) — SETTING ASIDE CONFESSED JUDGMENT-ANSWER OF JUDGMENT DEBTOR. In action by creditors to set aside a condebtor is not evidence against the judgment fessed judgment, the answer of the judgment creditor, and constituted no basis for setting aside the judgment as fraudulent. 2. FRAUDULENT CONVEYANCES 30 CONFESSING JUdgment. That a creditor to whom a debtor confessed judgment promised such debtor to withhold execution was no concern of other creditors, and did not tend to show that the confession of judgment by the debtor was with fraudulent intent as to other creditors. 3. FRAUDULENT CONVEYANCES 30 - CONFESSION OF JUDGMENT-PRIOR AGREEMENT. That an insolvent and a creditor to whom "It is a plain attempt, through the aid of a court of equity, to prevent the violation of the penal statutes of the state, and to confer upon that court the administration of the criminal law, solely because the sworn officers neglect or refuse to perform their duty in this regard. judgment was confessed had previously agreed The failure of these officers to perform their du-on a confession of judgment would not render ty constitutes no ground for the interference of because there could not be a confession of judgthe confession fraudulent as to other creditors, a court of equity." ment without an agreement. If it is so difficult to detect these thefts of ore and, therefore, the criminal law is not enforced-there is no reason apparent why it would not be equally difficult to show a violation of the injunction, unless dependence be placed upon that part of it which enjoins the purchasing of ore which the buyers have reason to believe have been stolen. In such a case, one cited for contempt would not know what evidence he ought to be prepared to meet. It would open a wide field of conjecture and speculation, and make it possible for the court to inflict a penalty on grounds upon which no two persons might hold the same view. 4. FRAUDULENT CONVEYANCES 123-CONFESSION OF JUDGMENT-PREFERENCES. and can confess judgment in his favor, although An insolvent can prefer a bona fide creditor, creditors are hindered and delayed, because there could be no preference without hindering or delaying other creditors. 5. FRAUDULENT CONVEYANCES 299(7) CONFESSION OF JUDGMENT EVIDENCE. Evidence held not to show that a confession of judgment by an insolvent was covinly, maliciously, or wantonly made with intent to hinder and delay creditors. 6. FRAUDULENT CONVEYANCES 123 - CONFESSION OF JUDGMENT-DEBTS NOT DUE. An insolvent can confess judgment on notes not yet due without being guilty of an unlawful preference. Appeal from District Court, Garfield County; John T. Shumate, Judge. Suit by Victor R. Olmsted and Marie K. Kingsbury against Minnie B. Coryell and another to set aside a judgment. Judgment for plaintiffs, and the named defendant brings error. Reversed and remanded, with directions. [2] Another effect of the injunction would be to deny one cited for contempt a trial by jury in what is in effect a criminal case. In other words, a court, without a jury, might convict persons of an offense which the statutes of the state make a felony, and, upon conviction, might inflict such punishment as to the court seemed proper. This fact alone should limit the right to an injunction to Defendants in error Olmsted and Kingscases in which its direct effect is the pro-bury commenced this suit November 15, 1913, tection of rights or property, and where it is as a direct attack upon a confessed judgment necessary to such protection. It is a truism that courts of equity are not fitted for the administration of criminal law, and attempts to extend their jurisdiction to that field, in for $7,809.15, entered against one Fawcett, July 22, 1913, in favor of Coryell, plaintiff in error. The purpose of the action was to secure the cancellation of the judgment, enjoin and restrain the sheriff of Garfield the judgment of confession against Fawcett county from selling the property of Fawcett in case No. 1655. January 5, 1914, Coryell on execution, and to procure the appointment of a receiver to take charge of the property. The Pleadings. answered, alleging that July 22, 1913 she obtained judgment by confession against Fawcett for $7,809.15, upon three promissory notes which were given for a valid consideration and were considered merged in the judgment; admitting the sheriff levied on the property and had a custodian in charge thereof until displaced by the receiver; that it was agreed in anticipation of the judgment that it should draw 6 per cent. interest; but denying that a sheriff's sale on execution will defraud plaintiffs or any of Fawcett's creditors of their just dues, or that the judgment was confessed for the purpose of hindering and delaying creditors. The Evidence. The uncontradicted evidence shows that The complaint alleges that June 24, 1913, Kingsbury recovered judgment against Fawcett for $170.40, on which execution was issued and placed in the hands of the sheriff August 21, 1913; that September 15, 1913, Olmsted obtained a judgment against Fawcett for $468.28, and forthwith caused a transcript to be filed in the office of the clerk and recorder's office; that no part of the judgments has been satisfied; that Fawcett owes more than $22,000 and is insolvent; that she is the owner of 560 acres of land in Garfield county; that July 22, 1913, in case No. 1655, while insolvent, and for the purpose of hin- Fawcett rented from Coryell what is known dering, delaying, and defrauding her creditors, Fawcett confessed judgment in favor 1913, at the agreed price of $600 a year; as the Red Soil ranch for the years 1912 and of Coryell in the sum of $7,809.15, in a suit that March 21, 1913, Fawcett owed Coryell brought by Coryell against Fawcett in the $600 for the rent of 1912, $49.25 for hay, and district court of Garfield county; that the $100 for a gasoline engine, a total of $749.25; judgment in that case is based upon certain that Coryell received from Fawcett, to be promissory notes alleged to have been given credited on this account, $225, leaving a by Fawcett to Coryell, which were not ex- balance due on settlement of $524.25, for hibited in court nor tendered for cancella- which she gave Coryell a promissory note tion and, if they existed, which is denied, it dated March 21, 1913, payable in 30 days with is alleged were executed without valid con- interest at 10 per cent., no part of which was sideration and for the purpose of hindering, paid, and which entered into the confession delaying, defrauding, and cheating her cred- of judgment; that March 31, 1913, Fawcett itors; that September 7, 1913, Coryell gave Coryell another note for $600, the concaused the sheriff to levy upon the property sideration being the rent for the ranch for of Fawcett and is about to sell it on execu- 1913, with interest at 10 per cent., no part of tion; that there was filed with the confession which was paid, and which also entered into of judgment an agreement of date July 21, the confession of judgment; that January, 1913, signed by Coryell, to the effect that the 1911, negotiations were commenced by Fawjudgment should not draw a greater rate of cett which resulted in the purchase, or agree. interest than 6 per cent. from date until ment to purchase, from Coryell, what is callsatisued; that the judgment so confessed ed the Pierce tract, at the agreed price of upon the suit and complaint of Coryell was $6,000. The deed to Fawcett was made and entered by collusion and fraud between Faw- acknowledged in Denver, April 26, 1911, at cett and Coryell for the purpose of giving which time a note for $6,000 was prepared, preference to Coryell, who had no other se- representing the purchase price; that the curity; and that plaintiffs and other credi- papers were not exchanged until October 20, tors will be defrauded of their just claims 1911, when Fawcett signed and delivered the unless a receiver be appointed to take charge note to Coryell who delivered the deed. Fawof the property and assets of Fawcett. cett withheld this deed from record until Prayer that the judgment be set aside and July 17, 1913, when Coryell ascertained that the suit in that case dismissed, that a re- creditors had already and were obtaining ceiver be appointed, and Coryell enjoined | judgments against Fawcett, which were befrom selling under execution, and for general coming liens against the land, while the relief. November 17, 1913, Fawcett by sepa- $6,000 note for its purchase price was unrate answer admitted all the allegations of secured. This note is dated April 26, 1911, the complaint and petition, consented to the the day the deed was acknowledged, and appointment of a receiver, and alleged that matured January 1, 1918, with interest at 6 she owned other property in addition to that per cent., payable annually, the first interest described in the complaint. November 18th, payment to be due January 1, 1913. No part the court entered a finding on the pleadings of this note was paid, and it was also includthat the actual parties in interest were Faw- ed in the judgment by confession, less the cett and plaintiffs, and without notice to interest, which was deducted to October 20, Coryell entered an order appointing a re- 1911, the date when the note was delivered ceiver of all the property and effects of Faw- and the deed accepted. It provided that in cett and enjoining and restraining Coryell the event of nonpayment of interest when from proceeding further in any manner under the same should become due, and after 30 |