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the yeas and nays were recorded, when by an inspection of the record it was found that they were not recorded.

The question in this case is quite different. The statute provides for the calling of a special meeting of the council by notice to be served personally or to be left at the usual place of residence of each member. But it is not required that such notice or the record of such service shall be preserved in any particular manner. Hence, when the record shows that a special meeting was called and held, it is to be presumed that the call was regular and that the service of notice was duly made as required by the statute, at least, until the contrary is proved, as the maxim asserts.

From the proceedings of the council it appears that it was deemed necessary to pass the ordinance without delay to take the place of a similar one which had been held defective; and that upon the report of the ordinance by the judiciary committee the rules which interfered with its passage were upon motion duly suspended by a formal unanimous vote before the vote upon the ordinance was taken. So far as appears the rules so suspended were not rules prescribed by any superior authority, as by the constitution or laws of the state, but such rules as the council itself had adopted, and which it was authorized to adopt to govern its own proceedings. Sec. 4490, supra. Such rules might properly be thus suspended by unanimous consent. Cushing Law & Pr. of Legislative Assemblies, secs. 794, 1478, et seq.

The judgment of the county court dismissing this action is reversed and the cause is remanded for trial de novo.



1. DUE PROCESS OF LAW.-Due process of law in a prosecution for a
felony does not necessarily include an indictment by a grand jury.
2. PROSECUTION BY INFORMATION.-A felony may be prosecuted by in-
formation where the probable guilt of the accused has been duly
ascertained and certified by a previous preliminary examination.
laws providing for indictments and informations as concurrent rem-
edies for the prosecution of criminal offenses throughout the state,
are not unconstitutional when surrounded by proper regulations
and safeguards and made applicable to all persons and communities
in the state without discrimination.

Original Application for Habeas Corpus.

THE cause was heard and determined upon the petition, amended by stipulation, and the demurrer thereto by the attorney general.

For constitutional provisions considered in the opinion, see Const. Colo., art. 2, secs. 8, 23 and 25; art. 6, sec. 28, also Const. U. S., art. 14, sec. 1.

Mr. RALPH TALBOT and Messrs. STIDGER & STIDGER, for petitioner.

Mr. J. H. MAUPIN, Attorney General, and Mr. H. RIDDELL, for the people.

Mr. B. F. MONTGOMERY, amicus curiæ.

MR. JUSTICE ELLIOTT delivered the opinion of the court.

The facts as stated in the petition are admitted by the demurrer. Thus it appears that the petitioner, Dolph, was proceeded against for embezzlement, a felony under our law, first, by a preliminary examination before a magistrate by whom he was bound over to appear, etc.; and thereafter in

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the district court by information based upon such preliminary proceedings. The preliminary examination was in all respects regular under existing laws, and the proceedings in the district court were in pursuance of the act of April 14, 1891, relating to criminal proceedings by information in courts of record. See Session Laws, 1891, p. 240. Having been convicted and sentenced for said offense, petitioner now seeks a discharge from such conviction by habeas corpus on the sole ground that the district court did not have jurisdiction by information to thus proceed against him.

In behalf of petitioner it is contended that the act of April 14th, supra, is unconstitutional, and particularly so when considered in connection with that portion of the act öf April 6, 1891, wherein it is provided that grand juries shall not hereafter be drawn, summoned, or required to attend the sitting of any court in any county in this state, unless specially ordered by the court having jurisdiction. Session Laws, p. 253.

The grounds of objection may be stated thus:

1. That a criminal prosecution for a felony by information instead of indictment is not due process of law within the meaning of the constitution of this State or of the United States.

2. That where the criminal procedure of a state allows the prosecution of a criminal offense either by information or indictment as alternative remedies, it is an infringement of the 14th amendment to the national constitution, wherein it provides that no state shall deny to any person within its jurisdiction the equal protection of the laws.

3. That while the grand jury remains a part of our judicial system, thus affording the means of prosecuting criminal offenses by indictment, an act providing for the prosecution of felonies by information, is in violation of our state constitution, wherein it declares that all laws relating to courts shall be general and of uniform operation throughout the state, and that the proceedings and practice of all courts of

the same class or grade, so far as regulated by law, shall be uniform.

Whether a prosecution for a felony by information is to be regarded as "due process of law," is by no means a new question. The subject has received the consideration of the highest judicial tribunals of several of our sister states and also of the supreme court of the United States. A brief statement of our views respecting due process of law as a fundamental principle of our jurisprudence, together with an examination of our own constitution and legislative enactments applicable to the facts of the present controversy, will suffice for the determination of the first objection above stated.

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No state shall deprive any person of life, liberty or property without due process of law, says the constitution of the United States; and our own constitution contains a like declaration. Due process of law within the meaning of these constitutional provisions undoubtedly includes "law in its regular course of administration through courts of justice; it also implies that any individual whose life, liberty or property may be affected by any judicial proceeding shall have timely notice thereof and reasonable opportunity to be heard in defense of his rights; but it does not necessarily include an indictment by a grand jury for a felony, even though such prosecution may deprive the accused of his life or liberty. While ancient forms of procedure are not to be lightly set aside or disregarded, modern judicial utterances as well as modern constitutions and laws evince more regard for substance than for form. Hurtado v. The People of Cala., 110 U. S. 516; Rowan v. The State, 30 Wis. 129; Parrish v. The State, 18 Neb. 405; Miller v. The State, 29 Neb. 437; Cooley Const. Lim., 5th ed., p. 436.

It is true that the procuring of an indictment through the intervention of a grand jury has been considered an important check upon hasty, ill-advised and malicious criminal prosecutions, and so a corresponding protection to individual rights. But when we consider that the investigation by a grand jury is wholly ex parte, and in secret, it may well

be doubted whether it affords any better security to the individual than an open accusation followed by a preliminary examination before a magistrate. In re Losasso, 15 Colo. 170.

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The proceeding known as a "preliminary examination under the laws of this state is well understood. It is a proceeding before a regularly constituted court or judicial magistrate in which the accused has the right to be present and hear all the witnesses, participate in their examination, and be heard also in his own behalf. He is also entitled to a change of venue upon a proper showing without costs. Mills' Ann. Stats., sec. 1484; 2 Id. secs. 2780, 2781.

The preliminary examination being concluded, the magistrate is required to find and openly certify his decision as to the probable guilt or innocence of the accused. If the finding be against the accused, the law requires that he shall be bound over or committed to appear and answer before the court having jurisdiction to try and determine the offense; and at the next term of such court he may be proceeded against for such offense by information in the same manner as if indicted by a grand jury. Such are the requirements of our law. Such are the safeguards for the protection of persons accused of crime by the provisions of the act under consideration. All these requirements having been observed in the petitioner's case, the objection that he has been deprived of his liberty without due process of law is not, in our judgment, sustained.

Whether an information filed in a case where the accused had not been previously bound over or committed upon a preliminary examination should be regarded as due process of law, is a question which need not now be determined, since the provisions of the statute applicable to the present controversy are distinct and separate from those providing for informations in other cases. Cooley Const. Lim., p. 178.

The second and third objections urged by counsel for petitioner may be considered together. The constitution of this state expressly authorizes the legislature to "change, regu

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