29 Colo. 478 | Colo. | 1902
delivered the opinion of the court.
Unless a decision of a constitutional question is necessary to a determination of the controversy, or if it depends merely on a construction - of statutes or hinges upon the agreed facts, this appeal is not within the jurisdiction of the supreme court.
The contention of appellant is that the office of district attorney is created by our constitution; 4nd, as such, its incidents, powers, duties and characteristics are defined by that instrument in the light- of the laws of the territory in force at the time of its adoption; and these being defined by the territorial act, which is the same as section 1551, it is beyond the power of the general assembly to denude the office thereof, confer the same upon some other office of its own creation, or to take from the district attor
Defendant concedes that the office of district attorney is a constitutional office, but argues that since the very provision creating the office declares that the duties of the officer shall be “as provided by law,’’ plenary power is vested in the general assembly to prescribe those duties, to take from, or add to, the same as they existed when the organic act was adopted, Defendant further maintains that even though the closing sentence of section 1551 does not confer upon county commissioners power to appoint a county attorney, section 813 does; and that when the board appointed Mr. Gray as county attorney to prosecute the suit in question, he, and not the district attorney» had exclusive power and authority to control the same, notwithstanding the fact that by the first part of section 1551 it is made the duty of the district attorney to appear in behalf of the state and the several counties of his district in all indictments, suits and proceedings which may be pending in the district court thereof wherein the state or any county of his district is a party.
It is to be borne in mind that the question is not whether the board of commissioners may appoint a county attorney, but whether its appointee may exclude the district attorney from control of suits like the one on the treasurer’s bond, and thus deprive him of the statutory compensation for such services. Moreover, the act of a county attorney in bringing or prosecuting a suit for a county is not
After a careful consideration of the arguments of counsel and a thorough examination of the authorities cited, we are of opinion that a decision of the constitutional question raised is not essential to a determination of the controversy. If it be conceded that it is competent for the general assembly to take from the office of district attorney authority to appear in all actions pending in the district court in which any county of his district is a party, and to confer the same upon a county attorney of its own appointment or creation'—as to which we express no opinion—it is quite apparent from the statutes, upon which such claim by the county is founded, that the general assembly has not attempted to do any such thing. Statutes bearing upon the same subject, though one be later in time of approval than the others, should, if possible, be so construed as to make them harmonize; and a repeal by implication should not be indulged unless the repugnancy between them is so great that they cannot stand together, or the evident intention of the general assembly was that the later was intended to take the place of, and supplant, the former. Certainly, there has been no express repeal of any portion of section 1551. In terms it confers on the district attorney power, and imposes on him the duty, to appear in all suits, etc., pendng in the restrict court wherein any county in his
But it is said that the general assembly in section 813 has conferred on boards of commissioners ample power to employ a county attorney who may supercede the district attorney in the control of suits like the one in question. That section is silent as to the powers and duties of an attorney employed thereunder by the board, though the district court held that there the power resided which the defendant claims. It would not be difficult, however, to name business under the control of the board to transact which it needs the services of a legal adviser other than services in prosecuting and defending indictments, suits and proceedings pending in the district court.
We are satisfied that the general assembly has not,
The necessity of determining whether this court has jurisdiction of the appeal has also made it necessary to pass upon one of the questions concerning which error is assigned, which is that the district attorney, under the statutes as they now exist, had, as against the county attorney, the power and exclusive authority to manage and control the action in the district court on the treasurer's bond. Because under the statutes he had, at least under the board’s supervision, such power, it does not necessarily follow that he is entitled to the commission claimed. That depends, among other things, upon the question whether, under the facts, he- has earned it, upon which, of course, as we have not jurisdiction of the appeal, we express no opinion.
The cause will, therefore, be remanded to the court of appeals, and it is so ordered.
Remanded to court of appeals.
