53 Colo. 527 | Colo. | 1912
Lead Opinion
delivered the opinion of the court:
This controversy is - over the right of different claimants to hold and enjoy the office of county judge of the county court within the political and corporate entity known as the city and county of Denver. The plaintiff in error, John R. Dixoii, is the incumbent of the office, and claims the right to
May 21, 1912, Wayne C. Williams and Roger H. Wolcott were elected county judges, by virtue of the provisions of the charter of the city and county of Denver. Art. IV, sec. 131, et seq. There being no incumbents of the office under the charter, AVilliams and Wolcott immediately qualified and demanded the ouster of Dixon, and the cessation by him of the exercise of the functions which they claim pertain to the office to which they were elected. Quo warranto proceedings were thereupon instituted against Dixon, resulting in his ouster from the office and the induction therein of Williams and Wolcott.
We have repeatedly held that a countjq and likewise state . and county governmental functions and duties, exist in the territory known as the city and county of Denver, as they exist in other portions of the state, and the sole effect of article XX of the constitution, in relation thereto, is to impose upon the inhabitants of such territory the power and duty to designate the agencies which shall therein discharge the acts and duties required of county officers to be done by the constitution and general law. And furthermore, that the city and county of Denver has not been freed from the constitution, but is as much subject thereto as any other part of the state, though portions of the constitution, as it existed prior to the adoption of article XX, became inapplicable to such territory because of the express provision of the new article. — People v. Cassidy, 50 Colo. 503; Mauff v. People, 52 Colo. 562, 123 Pac. 101.
• Adhering to these decisions, it follows, that if a judge of a county court is a county officer within the meaning of the constitution, the judgment of ouster, as far as it affects plaintiff in error, is right; otherwise, it is wrong. This is true irrespective of the question of the validity of the provisions of
Except as in the constitution otherwise provided, article VI thereof vests the judicial power of the state, as to matters of law' and equity, in a supreme1 court, district courts, county courts, justices of the peace and such other courts as may be provided by law.
Courts, in the constitutional sense, are the tribunals established for the purpose of administering justice. 11 Cyc. 633, 655. Without them the judicial power lies dormant and inactive in the people. In creating them it is essential, among other things, that the sovereign fix or make provision for fixing limits within which the power is to- be exercised. Accordingly, in the formation of constitutions, it is customary to sub-divide the territory constituting the state, and create or establish courts within and for such sub-divisions. So our constitution, having vested judicial power in certain courts, as designated in article VI, supra, fixes the territorial limits in which such courts shall transact business, or makes provision therefor.
As to district courts the duty is imposed upon the general assembly to divide the state into1 judicial districts, in each of which judges, as provided by law, are to be elected by the electors thereof for a term of six years. As to county courts, it, in effect, adopts a sub-division established by sec. 1 of art. XIV of the constitution in the creation of counties, which is evidenced by sec. 22 of art. Vil, providing for the election in
When we consider that counties are involuntary political and civil divisions of the territory constituting the state, created to aid in the administration of governmental affairs; that they are really quasi corporations or subordinate agencies for orderly government within the scope of their authority and have certain well-known duties to perform through .officials provided for that purpose, while territorial divisions or districts created in which to establish courts have no semblance of corporate character, no duties or functions to perform, it is clear that the selection by the organic law of a local sub-division of the state known as a “county,” for and within which to establish a court, does not make the functions of the court, county functions, or the officers of the court, county officers. A court of record is essentially not an office; it is an institution, an entity,' or agency within itself, invested with certain functions, just as the county is another agency within itself, invested with other duties to perform.
Clearly the use of the words “district,” “county” and “criminal” in article VI as prefixes to the word “courts” has no other significance than to give appropriate names to1 tribunals of government. The prefixes can in no> sense imply that the persons, who, under the law, become the members or officers of such tribunals, thereby become officers of the respective entities that bear such prefixes as their territorial designation. This is essentially true, because the subject dealt with, and the thing created is “courts.” Moreover, in making provision for the establishment and maintenance of courts, it is “judges of courts,” not officers of districts, or counties, or
We have examined the original manuscript of the constitution on file in the office of the secretary of state. In article VI thereof the several headings or subjects treated are set forth. As a heading to section i appears the words, “Judicial Department;” to section 2, “Supreme Court;” to section 11, “District Courts;” to section 21, “District Attorney;” to section 22, “County Court;” to section 24, “Criminal Court;” to section 25, “Justices of the Peace;” to section 26, “Police Magistrates,” and to section 27, “Miscellaneous.” In article XIV we find the following subjects: as a heading to section 1 the word “Counties;” to section 6 the words, “County Officers,” under which heading we find, not only in the original manuscript but also in the instrument as amended, the creation and provision for the establishment of certain offices and the election of officers thereto'. Section 6 of the article provides for the election of county commissioners; section 8 for the election of one county clerk; one sheriff; one coroner; one treasurer; one county superintendent of schools; one county
In proposing and adopting article. XX the people necessarily had in mind and knew that the incumbents of certain offices created by article XIV, or therein mentioned, were therein designated “county officers,” and no other officers were so designated in the constitution.. It is, therefore, incontrovertible that by the use in sec. 2 of art. XX of the words “county officers” in requiring that every charter shall designate the officers who shall “perform the acts and duties required of county officers to be done by the constitution or by the general law, as far as applicable,” they meant “county officers” that are such by reason of the provisions of article XIV and none other. This is true under the well established rule that the same meaning will be given to the same words occurring in different parts of the same constitution, unless it clearly appears therefrom that a different meaning was intended in some part alleged to be an exception.
That the use of the words “county officers” as found in article XX is identical with the use of the same words in article XIV is made evident from other language of the former article. That article created a new political and corporate entity, likewise declared that it should always constitute one judicial district of the state, and terminated the terms of office of all officers of the old and included municipalities and of the county of Arapahoe. It provided for a temporary government of such newly created entity, and in doing so likewise made provision, during- the existence of the temporary government, for the performance within such territory of the duties required of county officers to be done by the constitution and general law, as far as applicable. In doing so it
The fact of the omission, as hereinbefore noted, of county superintendent of schools in providing for the provisional government of the city and county of Denver, is of no importance. The omission was probably a clerical mistake, or more likely explained upon the assumption that sec. 7 of art. XX, wherein the city and county of Denver is constituted one school district, and the board of education thereof invested with the power to “perform all the acts and duties required to be performed within said district by the general laws of the state” completely eliminated the necessity for a temporary county superintendent of schools, and it was assumed that when the charter was adopted such board of education would therein be named to perform the acts and duties pertaining to such office.
The proposal and adoption of secs. 6, 8 and 11 of art. XIV, art. XX and.secs. 21 and 22 of art. VI, as they now stand, evidence a legislative intent to exclude from the operation of art. XX, as a county officer, that of county judge. These several provisions were adopted on the same day at the general election in November, 1902. As heretofore stated, art. XIV covers and deals with county officers, requiring their election every two years in each county, extending the terms of office of those then serving; some to' January, 1905, and the others to January, 1907. Article VI creates the judicial department. The sections, as amended, cover the subject of county judge and district attorney, respectively, requiring them to be elected every four years, a county judge in each county of the state, and a district attorney in each judicial district, and extend the terms of such officers then serving to the second Tuesday in January, 1905. Article XX creates the city and county of Denver. In each of the above designated sections of article XIV, as amended, are these words: “This section shall govern except as hereafter otherwise expressly directed or permitted by constitutional en
Moreover, such legislative intent is apparent from the manner of proposal and submission of the hereinbefore mentioned constitutional amendments of articles VI and XIV. These amendments were the subject of two separate Bills’, both introduced by senator Taylor. One is designated: “An act to submit to the qualified electors of the state of Colorado an amendment to sections twenty-one and twenty-two of article six of the constitution of the state- of Colorado;” the other is designated: “An act to submit to the qualified electors of the state of Colorado an amendment to sections six, •eight and eleven of article fourteen of the constitution of the state of Colorado.” Forms of ballot were prescribed wherein the amendment to the sections of article XIV was designated an amendment “concerning county officers;” whereas there is no reference to county officers in the form of ballot prescribed as to the amendment of the sections of article VI. And further, the proposal for the amendment concerning- county judges and district attorneys was one measure. Thus the lawmaking power associated in one piece of legislation, district attorneys and county judges. It likewise so associated them with district judges in article XX in declaring that such officials then serving- within the city and county of Denver should continue to serve for the term for which they were respectively elected.
Clearly, district judges and district attorneys are not county officers, and the association of county judges therewith in constitutional legislation is persuasive, though not controlling, that all were therein considered as belonging to the same class. Especially is this true when the sovereign was then exercising its legislative functions upon a different measure which it had denominated “concerning county officers,” and grouped together therein, and in other contemporaneous
Furthermore, section 15 of article VI of the constitution empowers the general assembly to provide, after a designated date, that the election of the judges of the supreme, district and county courts, and the district attorneys, or any of them, shall be on a different day from that on which an election is held for any other purpose. Here again, county judges are included within the same class as judges of the supreme and district courts, and district attorneys. Moreover, the 'purpose of this constitutional provision is well understood. It was intended that whenever it was deemed advisable the general assembly could readily place the election of the judges of the courts, and the court officials designated, beyond the effect of partisan politics and thus remove them from its influence. If a county judge is a county officer the general assembly would not have such powers over the officials exercising such judicial functions within the city and county of Denver, as that power would then be vested in the makers of the charter. When we hold, asi we do, that a county judge is not a county officer, within the meaning of the constitution, we harmonize its several parts, including the amendments thereto', SO' that article VI and article XX each have full force and effect in the city and county of Denver. Moreover, it gives effect to section 15 of article VI, all of article XIV, and eliminates the inconsistencies in the provisions of article XX which would otherwise exist. Defendant in error, however, contends that the controversy is res judicata by the decision of People v. Cassidy, 50 Colo. 503, wherein Johnson v. People, 34 Colo. 143, and Péople v. Horan, 34 Colo. '304, are criticised, and the reasoning of the dissenting opinions rendered therein adopted to support the views and conclusions reached in the Cassidy case.
. It is true that in the Johnson case the office now under consideration was in controversy, one claimant basing his rights thereto upon an election under the state law, and the
The Cassidy case involved the office of county commissioners, and none other. There was no issue therein as to the office of county judge. Should we concede that some expressions in that opinion imply that the office of county judge is of the same character as that of county commissioner and should be governed by the same principles, it must be -borne in mind the office of county judge was not involved, and expressions in reference thereto' are necessarily obiter. Such' expressions, if they exist therein, certainly should not bind this court to the extent of causing it to' disregard specific provisions of the constitution, when a case in which they are involved is under consideration. For the purpose of supporting-the views of the court expressed in the Cassidy case, the reasoning of the dissenting opinion of Mr. Justice Steele in the Johnson case, concurred in by Mr. Justice Gunter, and the dissenting opinion of the latter, concurred in by the former, in the Horan case, was adopted and relied upon. This measures the extent to which we are bound thereby. However, we reaffirm our conclusion that those dissenting opinions are sound and logical. At the threshold of Mr. Justice Steele’s dissenting opinion he made it plain that he entertained doubts whether article XX conferred upon the people of the city and county of Denver the power to provide by charter for an additional county judge, therein expressly stating that it “depends
Having stated that it was a debatable question whether the charter could provide for an' additional county judge within the city and county of Denver, and the question depended upon an interpretation of the article to determine its true intent and purpose, he expressly says that the people of the city and county of Denver in that respect “have just such authority as was conferred upon them by article XX — conferred expressly or by necessary implication — and none other.” He declines to determine the true intent and purpose in that respect of article XX, and limits the discussion and his conclusion to the right of the people of the city and county of Denver to designate, in their charter, the officers who shall perform therein the duties of certain officers which he names and which do not include county judge. He therein, on page 164, said: “I shall, therefore, shorten the discussion by simply contending that there is nothing either in the Sours case, or in any other case, for that matter, to justify the conclusion of the court that the people of the city and county of Denver had no authority to legislate in any particular with respect to the offices of sheriff, treasurer, assessor, clerk and recorder, jus
As to the reasoning of Mr. Justice Gunter in the dissenting opinion in the Horan case, it also1 strengthens and supports the views herein expressed, and the conclusions reached. He therein calls attention that the bill for submitting article XX was introduced by Senator Rush; that the bill for submitting amendments to article XIV by Senator Taylor. He then says: “The bill of Senator Taylor might pass the legislature and be adopted- by the people as an amendment to the constitution; the bill of Senator Rush might fail of passage or adoption. The bill of Senator Taylor was so framed that in such contingency it might apply to the county of Arapahoe,. but that it might not by possibility conflict with article XX in the event of article XX becoming a law, it was expressly provided at the close of each of the sections proposed as amendments to article XIV as follows: ‘This section shall govern except as hereafter otherwise expressly directed or permitted by constitutional amendment.’ ” He then refers to sec. 8 of article XX hereinbefore quoted, and declares that thereby the purpose is made manifest to have article XX control, as against any existing provisions of the constitution, or any proposed amendments to the constitution, -as those proposed to article XIV. If this was the purpose and intent it is con-' elusive that in failing to make such exception, or one of sim
We are in no wise embarrassed by anything said In Re Compensation of County Judges, 18 Colo. 272. The question of the duties and jurisdiction of county judges was not there considered. Moreover, it was an opinion handed down in an ex parte hearing upon an inquiry from the legislature. Besides, the constitutional provision as to compensation of officers, which was the basis of the inquiry therein, has been amended, so the opinion no longer has any force for any purpose.
Our attention has been called to certain laws enacted by the general assembly, wherein it is claimed that county judges have been treated as county officers. It is sufficient in answer to say that if such be true, it cannot affect this case. For the simple reason that wheresoever the constitution and the enactments of the general assembly disagree, the constitution governs, and that instrument has not included county judge in the classification of county officers, but expressly placed it elsewhere.
Having determined that a county judge is not a county officer within the meaning of the constitution, it necessarily follows that the judgment must be reversed, and it is so ordered with directions to dismiss the petition and discharge the writ. Judgment Reversed.
Decision en banc.
Mr. Justice Hill and Mr. Justice Baiely fully concur; Mr. Justice GárriguEs concurs in the result; Chiep Justice CampbEee dissents; Mr. Justice Musser and Mr. Justice Gabbert not participating.
Dissenting Opinion
Dissenting opinion by
To be of any practical benefit to the parties concerned at the general election, only a few days off, the decision of this
