52 Colo. 391 | Colo. | 1912
Lead Opinion
delivered the opinion of the court:
This action was brought by the plaintiff in error. The relief sought, in substance, was to restrain interfer-ence with his access to, or possession of, the rooms in the court house, theretofore occupied by the assessor of the city and county of Denver and the books, papers and records therein, used in connection therewith, containing and pertaining to the records of the assessment of the property situate in the city and county of Denver; and to require the defendant in error to redeliver said rooms and the contents thereof to the plaintiff, and that he be allowed to hold the same until removed therefrom according to law, etc.
The trial court denied the relief prayed for. The plaintiff brings the case here for review upon error.
Article XX of our state constitution was adopted in November, 1902. It provides, among other things, for a so-called consolidation government for the city and county of Denver. Pursuant to its provisions, a new charter was adopted in which the office of assessor for the city and county was created and, a party elected thereto who continued to perform the duties, as such, until ousted therefrom by the decision of this court in the case of People ex rel v. Alexander, 34 Colo. 193, wherein it was held (following the reasons stated in the case of People ex rel v. Johnson, 34 Colo. 143) that the
.The record as a whole. discloses, that the plaintiff was elected county assessor qf said county at the November election, 1910, and qualified accordingly; that no person had been.elected under the provisions of the city charter to perform the duties of assessor since 1904; that the person elected at that time had been ousted in the 'case-‘above referred .to; that after his election the plaintiff, without question from any one, performed all the ' duties of said office, and remained in the performance of such duties up to and including the 14th of December, 1911; that up to that time'he had been fully recognized by all the authorities of the city and county of Denver as the incumbent of' said office, during which period he never resigned nor withdrew from the office, nor had any steps been taken towards his removal. That some time after eight o’clock during the evening of December 14th, the honorable mayor of the city of Denver made a certificate of appointment designating the defendant Hilts to lie the assesssor for the city and county of Denver, and forthwith sent the appointment as such to the board of supervisors of the city then in session, which board at once confirmed the appointment; that a little later during the evening Hilts took the oath of office as such, filed a bond as required by the charter of said city, and filed another bond with the auditor of state for approval. That thereafter, some timé between nine and eleven o’clock the same night, he proceeded to the rooms occupied by llie plaintiff as the assessor’s office in the court house,
The principal contentions made to sustain the ruling of the trial court aré: First, that this was an attempt to try the title to an office, which it is conceded in'this' juris
It will be observed that this attempted ouster 'by force happened at a time when neither the constitution, state laws nor city charter provided for changes to be made in the incumbency of this office. As we read the pleadings this action was not brought to test the title to an office, but to restrain a certain person from forcibly taking possession of the rooms, books and furniture pertaining to the office of assessor, ánd restrain him from' thereafter preventing one theretofore in possession, and in the performance- of such duties from continuing to perform the same, and to have them so returned to him with the privilege of so retaining them, and to- continue in the performance of such duties until he is ousted therefrom, and the property taken from him in the manner pro- • vided-by law. In a case of this kind a court of equity ivas unquestionably possessed with jurisdiction to grant the necessary -relief, as said by the supreme court of
“Of course, an action of injunction is not the proper remedy to try title to public office. The many authorities cited by defendants in their brief establish that proposition, if indeed there was ever any doubt in regard to it. The law is just as clear that, where one is an incumbent holding the office ünder a prima facie legal right and performing the duties thereof, a court of equity will restrain an intruder from interfering with the proper exercise of those duties. That the plaintiff held this office for a term of two years ending in 1908 is conceded, and under the statute above cited there can be no doubt of his right to hold over until a successor is elected and qualified. It is, of course, equally clear that the defendants, one of whom was a candidate for election as a successor of the plaintiff, are not invested with the power or jurisdiction to determine for themselves whether they were duly-elected.”
We think this principle specially applicable here. It is conceded that the plaintiff, Arnold, was elected as an assessor within and for the city and county of Denver at the November election, 1910. At that time, pursuant to the provisions of the constitution as construed by this court in the Alexander case, supra, he became and was the de jure officer, and thereafter continued in the performance of his duties, and, while it is true that the principles of law announced in that opinion were overruled in the case of The People ex rel v. Cassiday, 50 Colo. 503, it is also a fact that this plaintiff was not a party to that action, and this court took particular pains in that case to point out, in substance, that while the principles of law announced in one case might be applicable to another with a like result to that reached in the former, yet
We .cannot agree with this-line of reasoning. The facts upon which the Cassiday case was presented are not all present or involved when applied to the conditions here. In that case others had been elected under the provisions- of the constitution to perform the duties in controversy ; - when that decision became final there had been no one elected or appointed to fill the office of city and county assessor, and, so far as this record discloses no one was contending that he, instead of Mr. Arnold, had the right to perform those duties or .that Arnold was without authority to’do so. Under this state of facts it was not only Arnold’s right, but it was his duty to continue in their performance; this, of necessity, made of him at least a de facto performer of the duties of the office and he was entitled, to be and had been recognized as such by all of-.the city officials. But it is contended since we held in -the' Cassiday -case, under the constitution, that there is--no office'-of ..county assessor as such, that there
As stated by the supreme court of Indiana in the case of The City of Huntington v. Cast et al., 149 Ind. at page 259:
“The welfare and good order of society and government require that those engaged in the discharge of public duties should not be disturbed by claimants whose right to discharge such functions is as yet uncertain. Equity will protect the possession of the incumbents from any unlawful intrusion.”
It is urged that this court is committed to a contrary doctrine. We do not think the cases cited sustain the contention. The facts in the case of The People ex rel v. District Court, 29 Colo. 277, were in no respect similar to those here. No similar question to those here presented for determination was before the court there.
The case of Lawson v. Hays, 39 Colo. 250, involved the contention of whether the board of county commissioners of the county should consist of three or five. Two members out of the three whose titles were not questioned
In the case of The People ex rel v. Elbert District Court, 46 Colo. 1, the controversy was in no respect similar to this. The office of Olsen as county commissioner had expired by limitations. The relator Pauls had been chosen as his successor and qualified. This all'transpired in a peaceful, orderly manner, and, at the time provided for such changes, and as we said, one was then unconditionally out and the other unconditionally in the office, and the party seeking the injunction had neither possession to, nor claim upon, it, either de jure or de facto, yet sought to enjoin out of the office, one, who, upon the undisputed facts, had been solely elected thereto, and had received the proper certificate, had taken the prescribed oath and possession of the office. It is entirely different from the case at bar. Here the incumbent Arnold had gone in peacefully and lawfully, at the time he should, and was de facto in the performance of such duties when forcibly removed by another claimant whose rights to it had not as yet been determined; under such circumstances a court of equity will protect such an in
'A - Ifis'nei;t-contended"’as the defendant is-now in possession by-'virtue of an appointment from the máyor, con■firme'd-by-the supervisors, etc., as’provided by the charter, and dn the performance of the duties, that this makes of 'him'at«least a 'de fado officer in• possession. -Further, ’that a'consideration of his title will disclose that he is in ‘fact a de jure "officer, but in either event-as these questions cannot be looked- into or tried in an equitable pro'ceedin'gj that the only way he can now loe ousted or these 'questions tested, is byquo zmrranto proceedings against him.’ As previously stated, the title to the office or any office is'not involved in this action, but the-real question to-be'determined pértaining to this phase of the contention, is whéther'the courts are to recognize that there is an advantage to be gained by securing possession forcibly. :If this is true, then a similar advantage is to be had by “the ousted party, rallying to his assistance sufficient suppor to overcoihethe resistance of the other incumbent, and retake- possession; the' result being that the courts would "recognize 'the advantage secured by the one- who could rail)' to his assistance the larger mob to be used in aiding him to obtain or in retaining possession. Tt would be do say, let mob violence prevail; and the- courts will recognize that the winner has thus secured'an advantage over 'his adversary, also that a claimant for an office or for the roorhs, books and papers pertaining to one, can, for himself, decide when a sufficient emergency exists to justify such action. This court has heretofore held that this is not the law in'this jurisdiction; and hás pointed out the proper mode of procedure in which to have these questions determined. In re Fire and Excise Commissioners, 19 Colo. in' conimehfihg’upo-n the proper’mo'de of pro
, “That no further doubt may exist' upon this question, we. say, without hesitancy," that if the executive order of removal is questioned by the incumbent, the courts have the power, and it is exclusively within their province, to pass upon such objections and determine as between the respective claimants the right to the office in question, and the law provides a plain and adequate procedure for that purpose; and a speedy determination of' such question is insured by express statute. Mills’ Ann. Stats, p. 830. All law-abiding citizens will, and all others should be required to, submit such controversies to these tribunals for settlement. The district attorney is empowered by statute to bring an action for that purpose.”
At page 503, in commenting upon this same phase of the matter this court further said:
“A proper regard for the reputation and peace of the community would dictate that the claimants institute proper proceedings in court to determine their right to the offices. In this way a speedy and peaceful result can be reached, and the person entitled to the office installed therein without disturbance or delay.” :
If it were, necessary, we- might add that the very foundation.. of organized government, depends upon all citizens who refuse, being compelled to recognize and bow to the rules and regulations of .the majority, promulgated through the laws .of the land.
. A somewhat similar state.of-facts existed in-the case of Blain v. Chippewa Circuit Judge, supra, vyhere the party taking .possession by, force made this,, .same contention. . The .supreme .court, of Michigan, ip answer, to. this contention, among other things, at page 65, said.:.-
To the same effect, in substance, is the Kansas case of Braidy v. Theritt, supra the rule announced reading from the syllabus is;
We think this principle applicable here, and if any advantage is to be recognized by possession under this state of facts, it belongs to the incumbent who was in the office and in the performance of the duties prior to-the time the contention arose. Mr. Arnold was inducted, into office peacefully and- lawfully, and under the facts, as they exist here as between him and the defendant claimant, he should be allowed to vacate peacefully, or be lawfully removed, and until such time comes he should', be protected by the courts in such possession. Let it be-understood that nothing- in this opinion is intended to. give any expressions pertaining to the right to continue-to hold any office involved or the possession of the office, or privilege to perform the duties pertaining thereto, when it is sought to have those matters tested in a proper proceeding instituted for that purpose.
For the reasons stated the judgment is reversed and the cause remanded with instructions that a decree be entered in harmony with the prayer of the plaintiff’s complaint. Reversed and remanded zvith instructions^
Decision en banc.
Concurrence Opinion
specially concurring-; • •
Two' questions are presented by the record in this case: (i) Where two persons are claiming the right to the same public office, one in possession under priww facie legal right, can the other rightfully obtain possession by force? (2) If possession is obtained by force, can the one thus ousted be.reinstated by a proceeding in equity?
Arnold, at the regular election in November, 1910, was elected to the office of county assessor of the city and county of Denver for the term of two years, beginning in January, 1911. He duly qualified, entered into the possession of the rooms in which the business pertaining to assessor was transacted, as well as the records, books, and paraphernalia of the office, and was in possession of such office, discharging the duties thereof, on December 14, 1911. On that date, Honorable Robert W. Speer, mayor of the city and county of Denver, assuming that there was a vacancy in the office of'assessor, for that, entity appointed Mr. Hilts to that position. Hilts, .claiming to have qualified as by law required, proceeded to the rooms occupied by Arnold in his official capacity, and demanded possession thereof, and the books and records pertaining to the office of assessor. This was refused, when Hilts, aided by others, broke open the door of the rooms and by force took possession-, and ejected Arnold. Arnold then brought an action in the district court the purpose of which -was to restrain Hilts from interfering with him in the performance of his duties as assessor,-and requiring Hilts to re-deliver to him possession of the rooms, records, books and paraphernalia of the office until he, the plaintiff, was removed from the office of assessor according to law. This relief was denied, and Arnotó'has brought the cause here for review on error. ¡
In. each of those cases, however, the facts were such that the rights of the respective parties could only be determined b)r ascertaining which of the litigants was entitled to the office in dispute. In none of these cases was the question involved of whether or not one in the possession of an office under a prima facie legal right, could .by injunction, restrain another from interfering with the •discharge of the duties of the one in possession until the right to the office was determined according to law. In fact, in .the Lawson case, it was stated that there was no charge to the effect that the defendants in the case were seeking to molest or interfere in any. way with the plain- • tiffs in discharging their official duties; hence, it was said the cases cited, to the effect that a public officer, either de -jure or de facto, rightfully in possession, and exercising the duties of his office, was entitled to an injunctiont against interference with him in the performance of suchi public duties, to the detriment of the public business, were not in point. In the case at bar, as stated at the outset,, the question is, whether or not one claiming title to a public office can, by force, oust another from the possession of such office, who claims to be rightfully entitled thereto under a prima facie legal right.
For a better understanding of the situation, it should be here stated that the contention on the part of Mr. Hilts is, that the decision of this court, in the Cassidy case, 50
Arnold was elected at the regular election in the fall of 19x0, for the term of two years, beginning January following. He qualified, was peaceably inducted into office, and proceeded without question from any one to discharge the duties of the office, until questioned by Mr. Hilts. Arnold was, therefore, at least an officer de facto, at the time Hilts ousted him of possession. Whether the ■decision in the Cassidy case in any manner affected his office, or by that decision his rights thereto were in any manner different from what they were under the decision In the Johnson case, are in no sense involved in the proceeding before us. It may be that Hilts is now entitled to the office of assessor, but he has no power or authority to determine that question for himself, by forcibly ejecting Arnold, who, at least, is a de facto' officer, and taking possession of the records of the office. The law provides 3 tribunal and an appropriate proceeding to determine this question. That a public officer, either de jure or de facto, In the lawful possession of an office, is entitled to an injunction to restrain one who.disputes his right to it, from
Any other rule would be detrimental to the public interest, by creating public confusion in the discharge of official duties, and invite a breach of the peace. The one m possession, if ousted by force, if his rights could not be protected by the courts, might resort to- force to regain possession, and if successful, the ousted party could again employ force to gain possession.
In order to preserve tranquility litigants must be required to settle their disputes in the forum which the law provides for that purpose. One who ejects another from an office rightfully in possession, under claim and color of title, will not be heard to say that by virtue of his wrongful act the latter can not be re-instated, except by a judgment in a proceeding to determine the title to the office.
We think all the propositions involved in this case are fully-settled by the decision of this court in In re Fire and Excise Commissioners, 19 Colo. 482. It was there held that the governor had no authority to forcibly induct his appointees into office, and that the rights of such appointees, as against the incumbents, could only be determined in an appropriate proceeding. If a claimant to an office is without authority to employ force to oust one in possession, having prima facie legal right to such office, then it must follow, that any threatened attempt of the claimant to employ force could be enjoined, and that
Dissenting Opinion
dissenting:
When Hilts, and those associated with him, entered the room occupied by. Arnold, and,, as disclosed by this record, forcibly ejected the latter therefrom, ■ and took possession thereof, and of the books and other paraphernalia used by him in performing the duties pertaining to. the office of assessor, they were clearly in the wrong, and there is no theory under which their acts' in that respect can be justified .or excused. It is likewise equally true that all law-abiding citizens, will, and all others should, be required to refrain from .the use of force in an effort to establish their rights or supposed rights. ■ ■
rft..does.,not. follow, however,, .that when -rights are once established, even by force, a court of equity will, or can lawfully, compel a surrender of such rights and restore them to. one not lawfully entitled thereto. If A. has possession.of B’s.horse,.and.under a wrongful claim of ownership, or right of possession, or arbitrarily, refuses to surrender the same to B., .the latter, has no1 legal right- to assault A.-and-take from-him the horse. If he shquld do. so,-however, -no- court of.equity will compel B. to .surrender the horse to A. and- resort to a suit at law to-recover, the-same... The taking of the horse by. B. from the -possession -of A. constituted no- private wrong against A. -cognizable in-a court of . equity, though the manner of taking constituted-a public wrong, to-wit, a wrong against society. ■ So- here, if Arnold had possession of rooms, books and other .paraphernalia which-were-incidents of ai?. office to-which Hilts-had been, lawfully’appointed,-
■ ' But the majority opinion concedes, that title to ah ’ office can not be tried in this character of a suit, but holds 'that this action was not brought to test the title to an office; that its sole pulpóse is to restrain another from forcibly taking possession of the incidents of such office, "require hini to return the same to the office, and to restrain him from thereafter preventing one theretofore in possession of such office, and in the performance of the duties pertaining thereto, from continuing to perform the same.
Hotchkiss, trustee, v. Keck, et al., 86 Neb. 322, 325, is the first case cited and quoted from upon this question. An inspection of the quotation and the case discloses that there was, without question, an existing office, an incumbent who had been holding the office under a certificate of election for two preceding years, and, under the státute, had a right to hold over until a successor was elected and qualified; and the defendant enjoined, though having been a candidate for election as successor to the incumbent, had not received a certificate of election, but the canvassing board had refused to issue to him such certificate. Thus the legal effect of the facts appearing constituted the party restrained, an intruder, one without right Or title to enter. Clearly in such case the title to an office is not involved. That opinion, after stating that it is the duty of the board of canvassers of the election returns, to determine whether a candidate for the office in
High on Injunctions, vol. 2, (4th Ed.), section 1315, is. also cited, and a cursory reading of the text would seem to support the majority opinion. The author of the text, however, cites but two cases: State v. Durkee, 12 Kan. 308, and Brady v. Sweetland, 13 Kan. 41, in support of the proposition.
In the former case a suit in the nature of quo warranto to oust certain alleged officers, contained a prayer for an injunction against such alleged officers and others as an ancillary proceeding. A temporary injunction was granted by the judge of the court below in accordance with the prayer of the complaint. Afterward the temporary injunction was dissolved as to such alleged officers. In 'holding that the temporary injunction was properly dissolved, the supreme court interpreted the quo warranto petition as alleging that the defendants therein were the county officers de facto, and probably de jura, and held that under such facts the state, as plaintiff, had no right to restrain them from the exercise of the duties and functions of their several offices pending the litigation, the syllabus on that question being as follows: “In an action in the nature of quo warranto against officers de facto, who claim to be officers de jure, it is not error for the judge of the court below to dissolve a temporary injunction granted to restrain such officers de facto from exer
The other case, Brady v. Sweetland, supra, cited’by 'High oil 'Injunctions in support of his text, and also in ‘the majority Opinion, was upon the following admitted "facts: ' B. was the treasurer of a school district, N. S. was ^ the clerk of said district, and I. S. was the director of the "samej and the three constituted the school'district board. W. claimed to be entitled to the office of treasurer thereof ’’instead of 'B., and had previously instituted an action against the latter in the nature of quo warranto to have his rights determined and to obtain possession of the ’"office. While that action was still pending, W., in' cdrijunction with one member of the board, undertook' ¥0 hire teachers and took possession of the school house. The school board, as represented by a majority thereof, asked for an injunction against W., and ‘his associate. ' The injunction as prayed was granted. Thus the case is orie wherein the party enjoined, admitted by the pleadings that the plaintiffs were such officers, an’d by reason of the institution of the quo watiranto proceedings also admitte'd that the party seeking the injunctive relief was actually in possession of the office and performing the duties ' thereof. Therefore, the enjoined defendant clearly cárne "within the definition of an intruder, one who in no sense had a prhna facie right to the office.
Braidy v. Theritt, 17 Kan. 468, is likewise cited in the majority opinion. The case in my judgment does not
,. Poyntz v.- Shackelford; -107 Ky. 5-46, cited in the.majority opinion, holds,, quoting from other authorities,-
The case of Callaghan v. McGowan, 90 S. W. 319, (Tex. Civ. App.), cited in the majority opinion, sustains an injunction issued in favor of those undisputedly in possession of an office under certificate of appointment, from interference by certain persons who in no wise claimed to be entitled to the office, but only that they had a right to take possession of the rooms and the authority to appoint some one to discharge the duties of the office.
Another case cited in the majority opinion is Kerr, et al v. Trego, et al., 47 Pa. St. 292. I think a careful consideration of that case clearly shows that it comes within the rule announced in Braddy v. Theritt, supra; that is, the legal effect of the facts removes the case from the class where the title to an office is involved. The undisputed facts were, that the term of office of twenty-one members of the council of the city of Philadelphia had not expired. That is, they were hold-over or continuing members. The law made it their duty to receive, at the city hall, on a day named, the new members thereof, (who had been elected in the respective wards), with a view to the due organization of the common council. Eleven of the continuing members, together with the president, clerk
Conover v. Devlin, 24 Barb. (N. Y.) 587, is conceded in the majority opinion to be based upon a statute, and, therefore, has no application here and need not be considered.
Huntington v. Cast, et al., 149 Ind. 255, 259, also cited in the opinion, involves a like principle recognized in Braidy v. Theritt, supra, and Kerr, et al. v. Trego, et al., supra. The facts admitted by the pleadings presented only a question of law which the court determined, and held that the parties enjoined were claiming under an alleged appointment that was absolutely void, the governor having appointed such parties to the supposed office that did not exist.
The only other case cited in the opinion upon the proposition now under consideration is Blain v. Chippewa Circuit Judge, 145 Mich. 59. The undisputed facts
I think the principle which I am here seeking to apply is clearly recognized in several cases by this court. In the People v. District Court, 29 Colo. 277, Q. had been appointed and held a certificate thereof from the governor to fill a vacancy in the board of county commissioners of Take county. The law authorized him to serve “till the
“While plaintiff' Quinn protests that he is not endeavoring to have the title to the office which he claims, determined in that proceeding, yet in the very' nature of things the district court could not take a step in the case without entering upon an investigation of that very question. That a court of equity has not jurisdiction to try a disputed title to a public office is too clear for argument. That determination can be made only in ail action in the nature of quo warranto, or in an election contest, as prescribed by statute. What must the district court necessarily decide-before it can grant even a temporary writ? Certainly, it must investigate and determiné either as matter of fact or law, that at least a prima facié case of the 'right to the office is shown to be in the plaintiff. To this extent, therefore, there would be a decision that he*420 had the better right to the office, and upon a final hearing, either upon a demurrer to the complaint, or upon a trial of the facts if the issue upon them is made, the court, before it can issue a permanent injunction, must necessarily hold that the plaintiff’s title is superior to that of his adversary. This can not be done in an equitable action.”
Indeed, the learned Chief Justice, further on in the opinion recognizes that some authorities hold, that under certain circumstances where a certificate of election is held by a claimant to an office, he may have a writ of mandamus to place him in the office as against a predecessor therein who, whether holding by election or appointment, claims that he is still entitled to hold because the election, for some reason is invalid, and that sometimes in favor of such certificate holder, an injunction has been granted, pending decision of title in quo warranto when such relief is necessary to protect public property, conserve great public interests, or prevent irreparable injury. He then says:
“But no well considered case can be found where such relief has been given to one not holding the certificate of election against the holder thereof, under facts such as this record discloses.”
Clearly, the case at bar does not come within the exception noted. The petitioner has not only failed to show the existence of a county office, but by his allegations as to the existence of the twentieth constitutional amendment, the decisions of this court, the adoption of a charter, the creation of the office of assessor thereunder, the appointment of Hilts thereto and the latter’s possession of such certificate and qualification thereunder, shows beyond question of doubt that the county office to which alone he has a certificate of election, does not exist,
The rule which I think is recognized and established by the authorities, is as follows: Where a public office exists, (perhaps either de facto or de jure), and there is n de facto incumbent holding under prima facie title, he may invoke the powers of a court of equity to protect him in the possession of the office and the incidents thereof as against one that has no prima facie title thereto, but if the controversy arises between two claimants, each of whom has a prima facie title, it is clearly a dispute as to a title to a public office, and equity has no jurisdiction therein. The last proposition is the principle announced in State v. Durkeef, supra, The People v. District Court, supra, and I think recognized by other decisions herein reviewed.
The case at bar, however, does not come within the principle stated above. The power which created an office may abolish the same, annul the agency, or transfer the duties of the office to some other agency, and the incidents of the office are likewise affected as public instrumentalities. Though Arnold and Hilts claim the same rooms, books, papers, etc., their respective claims are based upon separate and distinct offices. The office to which Arnold was elected was a county office, created by the constitution and general laws of the state. The rooms, the books, etc., here in question were at one time incidents of that office. The same sovereign power, however, that created that office, abolished the agency thus created, and transferred the duties of the prior office to
While some courts have held that an attempted creation of an office by an unconstitutional statute confers color of office, and that the incumbent of such an office under certificate of election or appointment, should be treated as a de facto■ officer, they have never held that the rule applies after the law, under which the office was attempted to be created; has been declared unconstitutional. The general rulé is, that where there is no office de jure there can be no officer de facto, and whenever an office ceases to exist, the rights of the incumbent terminate.—29 Cyc., pp. 1390, 1391, and cases there cited.
But, were we to assume that there could be a de facto officer where there is no office de jure, it would in no wise affect this controversy. The rule applies only where there is apparently such office' and never after a valid pronouncement that no such office exists. And it is im
This court declared in People v. Cassiday, 50 Colo. 503, that since the adoption of article XX of the constitution, and the formation of the municipal corporation of the city and county of Denver, there has never been within the limits thereof a county office, or county officer as such, except as the proposition may have been affected by the decision of this court in The People ex rel. v. Johnson, 34 Colo. 143, and that the holding in the latter case was erroneous. It necessarily follows, that upon the adoption of the constitutional amendment, and the formation of the city and county of Denver, the office to which Arnold claims to have been elected, instantly terminated, by reason of such constitutional pronouncement, but by reason of an erroneous decision of this court in the Johnson case, supra, the office apparently existed until the subsequent declaration of this court in the Cassiday case, supra, giving full vigor and effect to the constitution. Therefore, when the Cassiday decision became effective, it. was a judicial pronouncement that previously a constitutional amendment had abolished the office, but the office had apparently continued until that decision, and thus the matter is very clearly seen to be analogous to the apparent existence of an office attempted to be created by an unconstitutional law.
It does not follow, however, that the acts of-Arnold during the interval between the pronouncement in the Cassiday case, and the appointment and qualification of Hilts, are invalid. Under such circumstances, Arnold’s position was like unto those of one holding over after the expiration of a term. There was no one legally en
Suppose that after the majority opinion becomes effective Hilts should institute quo warranto proceedings against Arnold. The courts would doubtless hold, following .the Cassiday case, that Arnold must be ousted, as the office to -which he was elected was abolished by the constitutional amendment. The anomalous effect of -the holding herein would then be apparent. A court of equity has exercised its power in protecting Arnold in the possession of an office that has no existence, and compelling the return .to him of property which belongs only to another existing office occupied by another incumbent. Again, as “there can not be two different officers de facto in possession of an office for which one incumbent only is provided by law,” 29 Cyc. pp. 1391, 1392, and Arnold can only maintain this suit because he is a de facto officer in possession, it follows that Hilts, under the majority opinion, can not be a de facto officer. Because if Arnold is a de facto officer, he is necessarily legally in possession of the office entity and engaged in the performance of the duties attached to it. It takes these elements to constitute him a de facto officer. 29 Cyc., p. 1391. Now, the law is, “that the mere possessor of an office, without these other conditions, (being a de facto officer), is an intruder, whose acts have legally no effect.” 29 Cyc., p. 1392.
Applying these several rules of law to the facts of this case, we have this anomalous condition of things: Arnold maintains this suit because he is a de facto officer; Hilts, though actually performing the duties of the office, is a mere intruder whose acts have no legal effect, because “there can not be two different officers de facto, for which one incumbent only is provided by law,” and the acts of a mere intruder have no legal effect. However, as Hilts, who may finally be determined to be the de jtire officer, is actually performing the functions of the office under a certificate of appointment, and “there can not be a de facto- officer if a de jure officer is discharging the functions of the office in question,” 29 Cyc., p. 1391, Arnold is not a de facto officer and lacks an essential qualification to maintain this suit.
Finally, as Hilts undisputedly has a certificate of appointment to an office created by authority recognized under the constitution, and Arnold has no such authority to that office, and it is fundamental that injunction will not restrain a public officer from assuming to discharge the functions of his office, and it is said here that the things in controversy are simply incidents of the’ office, it would seem that this is not a proper case for injunction. Moreover, every consideration of- public interest requires that the status now existing be maintained, unless it is clearly established that the public functions are not now being performed by one in whom proper authority to that end is vested. It is conceded in the pleadings that Hilts was actually performing the duties of the office at and prior to the institution of this suit, and if is a matter of common knowledge that public officials and the public
Again, when the district court in the case at bar, refused Arnold the relief for which he prayed, it approved, in a measure, the contention that Hilts was, at least, a de facto officer, and permitted him to continue performing public functions, which, if we are controlled by reason and precedent, are probably void, and necessarily so if Arnold is still in truth a de facto officer. It is not a question of advantage or disadvantage as between Arnold and Hilts. If Arnold is not the dé jure officer, it profiteth him nothing to be re-instated, as it is only a de jure officer that is entitled to the salary. 29 Cyc., p. 1393. The question is, the rights of the public. If Hilts is the de jure officer, it is certainly an injustice to the public to remove him from office, throw distrust upon the legality of his acts, and bring confusion to public interests. If Hilts is the de jure officer and is removed, and Arnold restored, and thereafter upon quo warranto• proceedings, Arnold is ousted and Hilts re-instated, the confusion and uncertainty in public affairs will, I fear, be
As the facts are undisputed in the case before uss and present solely questions of law, I think this 'court should determine herein whether Arnold or Hilts is the de -jure officer and pronounce judgment accordingly, or, in ¡lieu thereof, affirm the judgment of the district court.
