10 Colo. App. 318 | Colo. Ct. App. | 1897
delivered the opinion of the court.
We do not regard the question presented by this appeal as open to discussion. The supreme court has practically settled the proposition and we have only to state our opinion that this case falls directly within its adjudications. The charter of the city of Denver, passed in 1893, and found in the Session Laws of that year, pp. 131 and 172, provides for the creation of a department of public health and safety. Section 45 of the act authorizes the governor with the advice and consent of the senate to appoint three commissioners for a specific term. In this connection we call attention to the first paragraph of section 45, because its peculiar construction coupled with the suggestion of the court in the case referred to hereafter, affords to our mind an unanswerable argument as to the applicability of the case about which counsel differ. The second sentence in that section gave the governor authority in the vacation of the senate to “ fill vacancies by appointments in writing,” and provided that “ all appointments ” by the governor should be made with the power of suspension and removal. The second sentence thereafter in the same paragraph prescribes the political character of the membership of the board and provides that “ all of said appointments shall be made to expire on the second Tuesday in April.” This sentence concludes the first subdivision'of section 45.
The whole discussion is rested on what is assumed to be the proper construction of section 6, article 4, of the constitution, which provides generally that the governor shall nominate; and by and with the consent of the senate, appoint all officers whose offices are provided for by the constitution or not otherwise provided for by law. The subsequent portion of the section provides that in case the governor shall nominate to fill a vacancy in an office to which this article is applicable, he shall only appoint until the next meeting of the senate, when he shall send the nomination in for confirmation. The contention is that the failure on the part of the governor to send the nomination into the senate resulted in the vacation of the office held by Mullins, and the creation of a vacancy which the incoming executive was authorized to fill. As we read the case this whole matter has been settled adversely to the appellant in The People ex rel. v. Osborne, 7 Colo. 605. The decision was with reference to
The judgment of the district court was in accordance with this view of the law, and it will accordingly be affirmed.
Affirmed.