made for their return. B. died a few weeks afterwards, without being informed of the rejection of his application, and his administrator brought suit to recover upon the receipt as on a contract of insurance. The court held (we cite from the syllabus): “(1) The transaction constituted merely a proposal from B. to the agent for a contract, the unqualified right of acceptance or rejection being reserved to the principal; and the proposal could not ripen into a contract until accepted by the principal. (2) Mere delay of the insurance company in accepting the offer or proposal and in returning the cash premium, for which demand was not made, did not amount to an acceptance of the proposal, and convert it into a contract. (3) The insurance company had the right to decline acceptance of the proposal without assigning any cause, no contract being made by the agent, who claimed no power to make any contract." The receipt given by the agent in the case at bar requested the applicant, in case he did not receive a policy within 30 days from the date of the receipt, to report that fact to C. H. Colby, Manager, Masonic Temple, Denver, Colo. It is not claimed or pretended that plaintiff ever gave or attempted to give such notice. Further, it does not conclusively appear that the premium and note were not returned to the plaintiff. Plaintiff does testify in rebuttal: "I never received from Mr. Bliss or from Mr. Hays any return of the premium paid, or the note, or any notice that it would be returned." This can hardly be claimed to be a denial that he ever received either the premium paid or the note. But it matters not whether he did or not receive either or both, for such nonreceipt could not be construed into an acceptance of his proposal for insurance by the defendant. This view of the law seems to be quite uniformly recognized. 'See Insurance Co. v. Johnson, 23 Pa. St. 72; Haden v. Association, 80 Va. 683; Pickett v. Insurance Co., 39 Kan. 697, 18 Pac. 903; O'Brien v. Insurance Co. (Cal.) 41 Pac. 298; More v. Insurance Co. (N. Y. App.) 29 N. E. 757; Winchell v. Insurance Co. (Iowa) 72 N. W. 503, and case there cited. The agent, Hays, whatever other authority he may have had, had no warrant or authority to make a contract of insurance for or on behalf of defendant, nor did he attempt to do so. He accepted from plaintiff a proposal for insurance, which was understood both by the agent and by plaintiff, and unequivocally set forth in the receipt given by the agent and accepted by the plaintiff. Such application was rejected by the defendant, of which action the manager of defendant notified plaintiff by mail. The jury found specially that C. H. Colby, the manager of the defendant, approved the proposal of plaintiff. The only evidence upon the subject of the approval of the proposal of plaintiff which appears in the record is the testimony of said C. H. Colby, who states that he declined to approve said risk on the 20th of July, 1893. Without a particle of evidence to support such finding the jury found he did approve it. Doubtless the action of the jury was influenced by the fourth instruction given them by the district court. We have not been able to find a single authority sustaining that instruction; on the contrary, every one of the cases cited supra negative the proposition contained in said instruction. The judgment of the district court is reversed, and the cause remanded for further proceedings consistent with this opinion. SULLIVAN, C. J., and QUARLES, J., con cur. (24 Colo. 291) HALL, County Treasurer, v. AMERICAN RE- 1. The cars of a refrigerator transit company, of a kind which it is necessary for railroads either to own or lease, although allowed to be run indiscriminately, over the tracks of any railroad requiring them, the railroads paying a fixed charge per mile for their use, acquire such a situs within the state as empowers the state board of equalization to assess the refrigerator company upon the average number of its cars in use in the state for the year, under Const. art. 10, § 10, and Mills' Ann. St. §§ 3765, 3804, 3805. 2. Mills' Ann. St. § 3805, subd. 5, directing the officers of each railroad company operating in the state to report to the state board of equali zation the number of cars of all kinds in use upon its road; and subdivision 7, authorizing the board to assess all property used by one corporation, and belonging to another, to either the corporation using it or the one owning it, is not, when applied to the case of a transportation company loaning cars to a railroad company for special purposes, an attempt to regulate interstate commerce, and repugnant to the exclusive power of congress upon that subject. 3. Mills' Ann. St. §§ 3804, 3805, directing that the officers of railroad companies shall report the amount of movable personal property in use upon their roads within this state, and directing the state board of equalization to assess such property either to the corporation owning or the corporation using it, is a proper provision for the assessment of such property. Error to district court, Arapahoe county. Action by the American Refrigerator Transit Company against Frank Hall, treasurer of Arapahoe county, to restrain the collec tion of a tax. A decree for the plaintiff was granted, and defendant brings error. Reversed. This is an action brought by the American Refrigerator Transit Company, the defendant in error, to have a certain tax declared null and void, and to restrain plaintiff in error, as treasurer of Arapahoe county, from collecting the same. The receiver of the Union Pacific, Denver & Gulf Railway Company, in pursuance of the requirements of section 1, pp. 290, 291, Sess. Laws 1891 (sec tion 3804, 2 Mills' Ann. St.), reported to the state board of equalization that he had in use on the line of railway operated by him, during the year ending December 31, 1894, 42 refrigerator cars belonging to defendant in error; and thereupon the state board of equalization assessed to defendant in error said 42 cars, at a valuation of $250 each, or a total valuation of $10,500, and distributed said assessment to the different counties through which the line of railway extended upon which said cars were used, according to the mileage in said counties respectively. Of such assessment, $750 was distributed to Arapahoe county. The county assessor of Arapahoe county made out a tax list based on such assessment, and delivered said list to plaintiff in error, as county treasurer of said county, with his warrant attached thereto for the collection of the sum of $21.63, being the amount of taxes so assessed against plaintiff, which amount the plaintiff in error was proceeding to collect, by distraint and sale of the property of defendant in error. The cause was tried to the court, upon the following agreed statement of facts: "Upon the issues made by the pleadings in this case, it is stipulated as follows, viz.: First. That plaintiff is, and was during the times mentioned in the petition, a corporation duly organized and existing by virtue of the laws of the state of Illinois, with its principal office in the city of East St. Louis, in said state; that it is engaged in the business of furnishing refrigerator cars for the transportation of perishable products over the various lines of railroads in the United States; that these cars are more expensive than the ordinary box or freight cars; that the cars herein referred to are the sole and exclusive property of the plaintiff; and that the plaintiff furnishes the same to be run indiscriminately over any lines of railroad over which shippers or said railroads may desire to route them in shipping, and furnishes the same for transportation of perishable freight, upon the direct request of shippers or of railroad companies requesting the same on behalf of shippers, but on the responsibility of the carrier, and not of the shipper; that, as compensation for the use of its cars, plaintiff receives a mileage of three-fourths of a cent per mile run from each railroad company over whose lines said cars are run, such rate of payment being the same as is paid by all railroad companies to each other for the use of the ordinary freight cars of each when used on the lines of others in the exchange of cars incident to through transportation of freight over connecting lines of railroads; that plaintiff has no, and never has had any, contract of any kind whatsoever by which its cars are leased, or allotted to, or by which it agrees to furnish its cars to, any railroad company operating within the state of Colorado; that it has, and has had during said times, no office or place of business, nor other property than its cars, within the state of Colorado; and that all the freight transported in plaintiff's cars in or through the state of Colorado, including the cars assessed, was transported in such cars either from a point or points in a state of the United States outside of the state of Colorado to a point in the state of Colorado, or from a point in the state of Colorado to a point outside of said state, or between points wholly outside of said state of Colorado, and said cars never were run in said state in fixed numbers, nor at regular times nor as a regular part of particular trains, nor were any certain cars ever in the state of Colorado except as engaged in such business aforesaid, and then only transiently present in said state for such purposes; that, owing to the varying and irregular demand for such cars, the various railroad companies within the state of Colorado have not deemed it a profitable investment to build or own cars of such character, and therefore relied upon securing such cars when needed from the plaintiff or corporations doing a like business; that it is necessary for the railroad companies operating within the state of Colorado, and which are required to carry over their lines perishable freight, such as fruits, meats, and the like, to have such character of cars wherein they can safely transport such character of freight. Second. That the average number. of cars of the plaintiff used in the course of the business aforesaid, within the state of Colorado during the year for which such assessment was made, would equal forty; and that the cash value of plaintiff's cars exceeds the sum of $250 per car; and that, if such property of the plaintiff is assessable and taxable within such state of Colorado, then the amount for which such cars, the property of the plaintiff, is assessed by said state board of equalization, is just and reasonable, and not in excess of the value placed upon other like property within said state for the purposes of taxation. Third. That said company is not doing business in this state except as shown in this stipulation and by the facts admitted in the pleadings. Fourth. That in case it be found by the court, under the undisputed facts set forth in the pleadings and the facts herein stipulated, that the authorities of the state of Colorado, under existing laws, have no power to assess or tax the said property of plaintiff, then judgment shall be entered herein for the plaintiff for the relief prayed; otherwise, judgment shall be entered for the defendant." The following constitutional and statutory provisions are referred to in the opinion: "All corporations in this state, or doing business therein, shall be subject to taxation for state, county, school, municipal and other purposes, on the real and personal property owned or used by them within the territorial limits of the authority levying the tax." Const. art. 10, § 10. Section 3765, Mills' Ann. St.: "All property, both real and personal, within the state, not expressly exempt by law, shall be subject to taxation. Section 3804, Id.: * It shall be the duty of said board [the board of equalization] to assess all the property in this state owned, used or controlled by railway companies, telegraph, telephone and sleeping or palace car * * companies. Section 3805, Id.: "The president, vice-president, general superintendent, auditor, tax-agent or some other general officer of such railway, sleeping or other palace car, or telegraph or telephone company or corporation, owning, operating, controlling or having in its possession in this state any property, shall furnish said board, on or before the fifteenth day of March in each year, a statement signed and sworn to by one of such officers, and showing in detail for the year ending on the thirty-first day of December preceding: * ** Fifth. A full list of rolling stock belonging to or operated by such railway company, setting forth the number, class and value of all locomotives, passenger cars, sleeping cars or other palace cars, express cars, baggage cars, mail cars, box cars, cattle cars, coal cars, platform cars, and all other kinds of cars owned or used by said company. The statement shall show the actual proportion of the rolling stock in use on the company's road, all of which is necessary for the transportation of freight and passengers, and the operation of the road within the state during the year for which the statement is made. The said statement shall also show the actual proportion of rolling stock of said company used upon leased lines and lines operated with others within the state, the mileage so leased and operated and the location thereof. 串 Seventh. * * * Whenever it shall be found that one corporation uses or controls any property belonging to or owned by another corporation, said board may assess such property either to the corporation using or controlling the same or to the corporation by which it is owned or to which it belongs. But every such corporation shall, in the statement to said board, set forth what property belonging to or owned by any other corporation is used or controlled by the corporation making the statement." The court below found the issues in favor of the company, and rendered a decree granting the relief prayed for. To reverse this decree, the treasurer brings the case here on error. Goudy & Twitchell, Byron L. Carr, Atty. Gen., and Calvin E. Reed, Asst. Atty. Gen., for plaintiff in error. Garland Pollard and Percy Werner (Charles M. Kenall, of counsel), for defendant in error. GODDARD, J. (after stating the facts). The power of the state to levy the tax in question is challenged by defendant in error upon three grounds: First, because the cars, being only transiently present within the state from time to time, acquired no such situs within the state as is necessary to give the state jurisdiction over them for the purposes of taxation; second, because such taxation would amount to a regulation of interstate commerce, and thus be repugnant to the exclusive power vested in congress to regulate such commerce; third, because, even if taxable within this state, no proper provision has been made by the legislature to assess and tax such property. The first objection presents what we regard as the difficult question in the case, and its solution necessitates an inquiry as to the meaning of, and effect to be given to, the foregoing constitutional and statutory provisions. It will be seen by reference thereto that it is made the duty of the state board of equalization to assess all the property in this state owned, used, or controlled by railway companies, etc.; and it is made the duty of the officers of such companies to furnish the state board of equalization, on or before March 15th of each year, a statement showing in detail, for the year ending on December 31st preceding, "a full list of rolling stock belonging to or operated by such railway company. * The state ment shall show the actual proportion of the rolling stock in use on the company's road, all of which is necessary for the transportation of freight and passengers, and the operation of the road within the state, during the year for which the statement is made." The right of a state to tax all subjects within its jurisdiction is unquestionable; and this right may, in the discretion of the legislature, be exercised over all property coming temporarily within its territory, whether for trade, business, or convenience, unless such exercise conflicts with some constitutional limitation. Railroad Co. v. Peniston, 18 Wall. 5; Lane Co. v. Oregon, 7 Wall. 71; Pullman's Palace-Car Co. v. Pennsylvania, 141 U. S. 18, 11 Sup. Ct. 876; 25 Am. & Eng. Enc. Law, p. 18. As was said in Pullman's Palace-Car Co. v. Pennsylvania: "The state having the right, for the purposes of taxation, to tax any personal property found within its jurisdiction, without regard to the place of the owner's domicile, could tax the specific cars which at a given moment were within its borders." It is clearly manifest that the purpose of these constitutional and statutory provisions is to subject all property owned or used by a railway or other corporation within the territorial limits of the state to taxation according to its value, 1egardless of the domicile of its owner; and, in so doing, they exercise well-recognized function of legislation. "For the purposes of taxation, as has been repeatedly affirmed by this court, personal property may be separated from its owner; and he may be taxed, on its account, at the place where it is, although not the place of his own domicile, and even if he is not a a citizen or a resident of the state which imposes the tax." Pullman's Palace-Car Co. v. Pennsylvania, supra. While it is true, as stated by counsel for defendant in error, that it has been uniformly held that property merely in transit through a state acquires no situs for the purposes of taxation, and it may be further conceded that the property so in transit would not, within the letter and spirit of our legislation, acquire such situs, yet it by no means follows that the cars in question are entitled to exemption under this rule. As shown by the agreed statement of facts, these cars are more expensive than the ordinary freight cars, and the various railway companies within the state of Colorado have not deemed it a profitable investment to build or own such cars, and therefore rely upon securing them from defendant in error or like corporations when needed; that it is necessary for the railroad companies operating within the state of Colorado to have such character of cars in order to transport over their respective lines perishable freight, and, if they could not secure them when needed, it would be necessary for them to own and keep them as a part of their rolling stock,-the sum and substance of which amounts to this: that such cars are a part of the necessary equipment of the different railroads using them in the state, and as essential to the transaction of their business as any other portion of their rolling stock. While it appears that said cars are not run in the state in fixed numbers or at regular times, and that certain or specific cars are only transiently in the state, yet it is shown that the average number of cars used in the course of the business aforesaid within the state during the year for which such assessment was made was equal to 40. Under these circumstances, we think the effect of our legislation is to give to the cars in question a situs for the purpose of taxation, and that they were "habitually used and employed" in the state, in the sense that these words are used in Marye v. Baltimore & O. R. Co., 127 U. S. 117, 8 Sup. Ct. 1037, and are assessable under the rule therein announced. Mr. Justice Matthews, who delivered the opinion of the court, in upholding the right of the state of Virginia to tax the Baltimore & Ohio Railroad Company, whose situs was in Maryland, upon rolling stock used interchangeably upon the main line and branches of its road in the states of Maryland, Virginia, Pennsylvania, and states west of the Ohio river, as the necessities of the company required, said: "If the Baltimore and Ohio Railroad Company is permitted by the state of Virginia to bring into its territory, and there habitually to use and employ, a portion of its movable personal property, and the railroad company chooses so to do, it would certainly be competent and legitimate for the state to impose upon such property, thus used and employed, its fair share of the burdens of taxation imposed upon other similar property used in the like way by its own citizens." The status of the cars in question was also substantially like that of those under consideration in Pullman's Palace-Car Co. v. Pennsylvania, supra, in that there was an average number in use within the state during the period for which the tax was levied; and we think that, under the reasoning of that case, they were subject to taxation in this state. Pickard v. Car Co., 117 U. S. 34, 6 Sup. Ct. 635, and Car Co. v. Nolan, 22 Fed. 276, are mainly relied on as sustaining a contrary view. While the court uses general expressions touching the question of situs that seem to sustain the contention of defendant in error, it is to be observed that the question then under consideration was the validity of a license or privilege tax imposed upon cars employed in interstate commerce; and the language touching the situs of the property was used with reference to the right of a state to impose such a tax, and not as to its jurisdiction to impose a property tax, as in the case under consideration. In Pullman's Palace-Car Co. v. Pennsylvania, supra, Mr. Justice Gray, referring to these and kindred cases, says: "Much reliance is also placed by plaintiff in error upon the cases in which this court has decided that citizens or corporations of one state cannot be taxed by another state' for a license or privilege to carry on interstate or foreign commerce within its limits; but in each of those cases the tax was not upon the property employed in that business, but upon the right to carry on the business at all, and was thereby held to impose a direct burden upon the commerce itself." It will be readily seen, therefore, that the expressions of the court in regard to the question of situs could have no significance or bearing upon that question as presented in this case. It it can be said that the court in those cases intended to hold that, under the conditions therein disclosed, the cars acquired no situs that would subject them to a property tax, then its finding was in direct conflict with the conclusion reached in the later cases above referred to. The tax now under consideration is not a license tax, or in any sense a tax for the privilege of transacting interstate commerce, but only a property tax imposed upon certain cars employed in such commerce. The second objection urged against its validity is therefore clearly untenable. The power of a state to impose such a tax is too well settled to admit of discussion. As was said by Mr. Justice Brewer, in passing upon the petition for rehearing in Adams Exp. Co. v. Ohio State Auditor, 166 U. S. 185, 17 Sup. Ct. 604: "Again and again has this court affirmed the proposition that no state can interfere with interstate commerce through the imposition of a tax, by what ever name called, which is in effect a tax for the privilege of transacting such commerce; and it has as often affirmed that such restriction upon the power of a state to interfere with interstate commerce does not in the least degree abridge the right of a state to tax at their full value all the instrumentalities used for such commerce." And as was said by Mr. Justice Gray, in Pullman's Palace-Car Co. v. Pennsylvania, supra: "The cars of this company within the state of Pennsylvania are employed in interstate commerce; but their being so employed does not exempt them from taxation by the state; and the state has not taxed them because of their being so employed, but because of their being within its territory and jurisdiction." To the same effect are Cable Co. v. Adams, 155 U. S. 688, 15 Sup. Ct. 268, 360, and the original opinion in Adams Exp. Co. v. Ohio State Auditor, 165 U. S. 194, 17 Sup. Ct. 305, in which this question is fully discussed and authorities reviewed. In the view we take touching the situs of the property, but little remains to be said upon the question presented by the third objection, since the reasons advanced in its support are mainly those relied on as sustaining the claim of defendant in error that its cars were only transiently here, and were not "used or controlled" in the state, within the meaning of our statute, an assumption that we have found to be unwarranted under the agreed facts in the case. Constituting, as we have seen, a part of the necessary equipment of the railroad company using them, the cars clearly come within the class of property intended to be reached by the foregoing legislation, and consequently within the jurisdiction of the state board of equalization to assess and tax them. That the procedure prescribed furnishes a mode, convenient and equitable to all concerned, for the valuation and taxation of this class of property, is settled by prior decisions of this court. Carlisle v. Car Co., 8 Colo. 320, 7 Pac. 164; Railway Co. v. Church, 17 Colo. 1, 28 Pac. 468. And the right to base the assessment upon the average number of cars in use within the state during the year is recognized in Pullman's Palace-Car Co. v. Pennsylvania, supra, and expressly upheld in Marye v. Baltimore & O. R. Co., supra. In the opinion quoted from, Justice Matthews says: "And such a tax might be properly assessed and collected in cases like the present, where the specific and individual items of property so used and employed were not continuously the same, but were constantly changing, according to the exigencies of the business. In such cases the tax might be fixed by an appraisement and valuation of the average amount of the property thus habitually used." Our conclusion, therefore, is that the tax in question is not obnoxious to either of the objections urged against it, and the court below erred in restraining its collection. Its judgment is accordingly reversed, and the cause remanded, with direction to the court below to dismiss the action. Reversed. (24 Colo. 301) HAMILTON v. PEOPLE. (Supreme Court of Colorado. Dec. 6, 1897.) CONSPIRACY TO COMMIT BURGLARY-INFORMATION -SUFFICIENCY. 1. In an information for conspiracy to commit burglary, an allegation that the owners of the premises to be burglarized are to the district attorney unknown is sufficient as to names of the owners, where nothing to the contrary appears. 2. Where the offense is charged to have been committed in a certain county, and it is alleged that the wrongful act was to be perpetrated in said county, it is not necessary to definitely locate the premises that were to be burglarized. 3. Where one charged with conspiracy to commit burglary claims that the description in the information of the premises to be burglarized is insufficient, and desires a bill of particulars, he must demand the same in order to have the matter reviewed. 4. An information charging a conspiracy to commit burglary is not duplicitous because it alleges that the conspiracy was to commit two or more different burglaries. Error to district court, Arapahoe county. Frank Hamilton was convicted of conspiracy, and brings error. Affirmed. David G. Taylor, for plaintiff in error. Byron L. Carr, Atty. Gen., Calvin E. Reed, Asst. Atty. Gen., and George H. Thorne, Asst. Atty. Gen., for the People. HAYT, C. J. A conspiracy to commit the crime of burglary is charged. The evidence in the case is not before us, so we must assume it was sufficient to warrant the verdict. Complaint is made on account of the failure of the indictment to state the name of the owner of the houses to be burglarized, and also for failure to definitely locate the premises. It is alleged that the owners of the premises are to the district attorney unknown, and, as nothing to the contrary appears, this allegation must be held sufficient. The indictment substantially follows the form of the statute, and we think it is sufficient. The offense is charged to have been committed in Arapahoe county, and it is alleged that the wrongful act was to be perpetrated in that county. To make out the offense, it is unnecessary to show that any steps were taken towards the carrying out of the conspiracy. We think the objection as to description of premises not well taken. Moreover, if the defendant desired a bill of particulars, he should have demanded the same, and, if refused, might have had his application therefore reviewed by reserving an exception to the ruling of the court, and assigning errors thereon. This was not done. It is urged that the information should have been quashed, for the reason that it charges more than one offense, as it is said. The |