dissenting.
I regret my inability to concur in the foregoing opinion.
*77The record in this case discloses the fact to be, that in the superior court 'plaintiff in error demanded a trial by jury. The court then, in accordance with the rules, and its understanding of the statute creating said court, requested the payment of fees in advance for the jury, with which request plaintiff in error declined to comply. The court thereupon proceeded without a jury, and, in the absence of plaintiff in error, heard the testimony upon the averments in the cross-complaint.
The only question presented in the case is, was plaintiff in error entitled to a jury trial?
Section 5, chapter 82, General Statutes, 1883, provides: “ In all cases for a divorce, where the defendant shall appear and deny the charges in the complainant’s bill alleged, the same shall be tried by jury.”
The act creating the superior court provides: “That in any action pending before a superior court, in which a party thereto is entitled to a jury, such party may have a jury summoned to try the same in the manner provided by law for summoning jurors to try cases in the county court.” Section 15, p. 398, General Laws.
The act relating to county courts provides: “ That in any action pending before the county court either party may have a jury summoned to try the same by advancing fees for the payment of such jurors, and when judgment shall be rendered in favor of the party demanding a trial by jury, such party shall recover the fees paid by him for such jurors of the adverse party, and have the amount thereof taxed as a part of the costs in the case. * * * ” Section 21, p. 249, General Laws.
Under the act creating the superior court it is provided, by section 3, that such superior court shall have original and concurrent jurisdiction with district courts within the limits of the several cities and incorporated towns for which they were created. That the said courts of the state in all civil causes, both at law ,and in equity, shall have such appellate jurisdiction in such causes as is provided by law for the district courts, and shall be governed in all proceedings with *78reference to process and pleading by the laws now or hereafter to be enacted for the district courts. All process issued out of the superior court shall be issued and served in like manner as similar process is issued and served from district courts of the state.
Section 469, Civil Procedure, provides, that in all civil actions within their jurisdiction the county courts and the judges thereof shall have the same po^er to grant all orders, writs and processes which the district court or the judges thereof have power to grant within their jurisdiction, and to hear and determine all questions arising within their jurisdiction, as fully and completely, as the district court or the judges thereof have power to do under the laws of this state, except as otherwise provided in this act.
It cannot be denied that the act creating the superior court is a special act. It cannot be denied that the act creating the superior court does not provide for the summoning of jurors as is provided by the law and practice act relating to the district courts. It cannot be asserted that the compensation of jurors summoned in the superior court is in any manner provided for by the act creating the court, save and except the fees be advanced as a prerequisite to the issuance of the summons, as provided by the act concerning trial by jury in the county court.
Is it not a fact that a general statute cannot prevail over a special one; and does not the theory, that section 15 of the act pertaining to the superior court simply refers to the manner of summoning a jury, sink the spirit of the act into the letter ? Sedg. on Const. & Stat. Law, 99, 229, 104, 105; Branagan v. Dulaney, 8 Colo. 408.
11 Leges posteriores, priores contrarias abrogant. If two inconsistent acts be passed at different times, the last is to be obeyed; and if obedience cannot be observed without derogating from the first, it is the first which must give way.”
Under the act, to wit, “ The Code of Procedure, the method of summoning a jury, the manner in which they may be drawn, by whom drawn and from what particular class of *79people they may be drawn, is provided for so far as the district court is concerned.” Is that true so far as the superior court is concerned ? The superior court by section 4, is conceded to have the same powers, when not otherwise provided by law, to prescribe by rule the time of pleading, and shall have the same powers as the district courts have to regulate their practice, process and proceedings in other respects. It was the rule of the court that a party demanding a jury in any case pending should advance the fees for the payment of the same. Does the provision of section 8, which provides that said superior court shall be governed in all proceedings with reference to practice and pleading by the laws now or hereinafter to be enacted by the district courts, inhibit the superior court from providing that in cases where either party litigant desires a jury that they shall advance the compensation necessary to be paid for the services of such jurors?
This, in my judgment, is not clogging by restrictions the right to a trial by jury, but simply provides for a condition precedent to the exercise of that right.
The practice in the county court is the same as that in the district court, the same as that provided in the superior court and district court, save and except the explicit wording of the statute, providing for a jury trial in the county court.
Now, does the provision, “shall be summoned in the same manner as in the county court,” refer simply to the method of summoning the jury, or has it not a larger and more comprehensive operation, to wit; they shall be summoned in the same manner and upon the same terms and conditions. In other words, the superior court should summon a jury upon the advance of the fees by the party demanding a jury. No provision is made for a jury, or rather for the payment of a jury in any case unless it be summoned in the same manner as they are in the county court.
It occurs to me, that had it been in the contemplation of the legislature that a jury should be summoned in the same manner and under the same circumstances as is provided for *80in district courts, the word “ district,” instead of “ county,” would have been used.
Thus we have left the act without ambiguity. There can be no doubt as to what the-legislature meant. They said in this instance we will create a court with limited jurisdiction, limited to cases arising within the city of Denver, a city of a certain population, limited to the extent that only cases arising within the domain of that city would come within the jurisdiction of that court. The purpose of the act was to expedite litigation,- which, by reason of the increased population and commercial importance of Denver, had 'rapidly increased to such an extent that the then existing district courts of Arapahoe county could not cope with the volume of business, and for the purpose of aiding in the disposition of the same they provided that in all cases the expense incident to litigation by the constant attendance of jurors, from time to-time, during eight, perhaps ten months of the entire year, should not be necessary, and that every litigant who should present his case to that court should have a right of trial by jury on condition that he should do as was required of litigants in the county court, to wit, advance the fees of jurors. This being so, and being a subsequent act to the act creating the district courts, and to the act creating the county courts, and to the “ Divorce and Alimony act,” it in my judgment operates to suspend the provisions of the divorce act, which provides that in' cases where complaint and answer is made, the causes shall be tried by a jury. It suspends it only to the extent of saying, that they shall be tried by jury when the parties litigant demand it and comply with the rules of that court, to wit, payment of fees. I am utterly unable to concur in the opinion, that by reason of the provisions of the act concerning divorce and alimony a party is entitled to a jury irrespective of the rules and regulations that the courts may establish by authority of subsequent legislation concerning such trials.
When the constitution déclared that trial by jury should be observed, no restriction was thereby laid on the legisla*81ture as to erecting or organizing judicial tribunals in such manner as might he most conducive to the public convenience and interest.
It is true that the legislature cannot impose any provisions substantially restrictive of the trial by jury. They may give existence to forms; they may modify the powers and change the form of courts; still the sacred right of any citizen to trial by jury must be preserved. Here the right of trial by jury is given upon condition. True the party may be subjected to some inconvenience in paying the fee, but this inconvenience does not amount to a denial of right. If the provisions of the constitution providing for a trial by jury can be thus qualified, made operative upon condition, why then cannot a trial by jury provided for in the statute be subjected to subsequent legislation, and subsequeiit rules of practice promulgated bjr courts of subsequent creation under subsequent powers ?
An act which authorizes a judgment to be rendered without the intervention of a jury is not, on that account, unconstitutional, nor would it be where it guarantees this right ultimately as it does in this case. If a party therefore does not demand a trial by jury in conformity with the rules of the court and the statute, pray tell me why he or she should complain ?
.This action was originally commenced in the superior court, by the plaintiff in error. The act creating the superior court was before her,— of its existence and provisions she was expected to take notice, and she knew that in going into that court the practice of that court was to summon jurors upon request of either party, plaintiff or defendant, and upon payment of fees. Why the rule should obtain in divorce suits different from that in all other actions, both in law and in equity, I cannot fathom.
The terms may be onerous, but this is purely a question of expediency, and one which must from its very nature address itself exclusively to the law-maker. It is difficult to prescribe limits to the powers of the legislature. Cases might *82arise which would authorize that body to act very far in disregard of rules and regulations which are ordinarily observed in the enactment of the law for the assertion and defense of rights. There is no infringment upon the right of trial b3 jury, either under the act concerning divorce and alimony, or in the provisions of the constitution of the state. It is simply exacting the payment of fees as a prerequisite to that right. I may here remark that the law always properly manifests its tenderness for the impotent and the poor, and the plaintiff in this case, if without means or ability to pay or advance the fees necessary to secure the jury, could have made the affidavit that such was her condition, and by the provisions of our law she was then absolute^ entitled to prosecute that case and secure that jury by order of that court at the expense of the people. To the rules of conduct prescribed b3 law, and the rules of the superior court, she submitted herself, and she was bound by its judgment.
In Conneau v. Greis, 78 Cal. 176, the supreme court said the rule requiring, a party demanding a trial by jury to deposit the jury fees with the clerk, in advance of the trial, is a reasonable regulation of the mode of enjoyment of the right of trial b3r jury, and is not a denial or impairment of the right; and the party demanding a jury trial, upon refusal to comply with the rule waives Ms fight to a jury. Right of trial by jury in equity and divorce cases is a matter of statute. At common law no such right exists. The method of trial, and compensation in such cases, is well known to every lawyer, and being a creation of statute I think it clearty follows that the superior court in establishing the rule that where a party in any case without exception demanded a jury, that such party should advance the fees, and by a failure to do so he or she waives the right to a jury, was warranted by section 15 of the act creating said court.
Let it be observed that the act creating the superior court makes no provision for jurors, except by section 15, which provides they may be summoned to try the issue in the manner provided bj' law for summoning jurors in causes in the *83county courts. By the method providing for jurors in the district court, in every case save equity, a right of trial by jury is granted in the' district court, and at each and every term of the' district court a jury of twelve or more are in constant attendance, and in the county and superior courts never. The very language of section 15 says, in any action pending before a superior court in which a party thereto is entitled to a jury, such party may have a jury. “ May have ” a jury implies that they must ask for a jury, and they may be summoned under the rule and regulations of that court in the same manner as jurors to try causes in the county courts are.
It is well settled that a subsequent statute which is clearly repugnant to a prior statute necessarily repeals the former, although it does not do so in terms, and even if the subsequent statute be not repugnant in all its provisions to a prior one, yet if the latter statute was clearly intended to prescribe the only rule that should govern in the case provided for, it repeals the original act. Sedgwick on Con., pages 104, 105; Korah v. The City of Ottawa, 32 Ill. 121.
Cases without number can be found which declare that every statute is, by implication, a repeal of all prior statutes so far as it is contrary and repugnant thereto, and that without any repealing clause. It' can also be said that the principle is without contradiction, that where two statutes can be made to stand together it is the duty of the court to give them full effect. Sedg. on Con., p. 105. The latter principle, so far as the practice in the county court, superior and district courts is concerned, can be applied without doing violence to reason and yet support every right and privilege that the plaintiff in error could claim under any provision of any of the acts applicable to her case. The first principle above recited supports the contention that I make, to the effect that the act creating the superior court, in so far as it refers to a jury trial in causes therein pending, is obnoxious to the provisions of the law providing for jury trials in district courts and is consistent with the provisions of the act *84providing when and in what manner jury trials may be had in the county court.
In expounding the acts of the legislature it is a well established rule, that the intention of the maker must prevail, and this is to be collected from the words “ and the necessity :of the legislation.”
I am thoroughly convinced that the plaintiff in error is without remedy in this court and that the judgment of the court below should be affirmed.
Reversed.