29 Colo. 535 | Colo. | 1902
(after the foregoing statement of facts) delivered the opinion of the court.
The jurisdiction of this court to entertain quo warranto proceedings to oust from office a constitutional officer subject to impeachment, is challenged by defendant. It is contended that swh officer can be removed only by impeachment proceedings by the general assembly. We shall, however, assume that this court is vested with jurisdiction over the charges herein preferred, and proceed to dispose of the cause on its merits.
It is conceded that in jurisdictions where common law rules and principles of procedure prevail, as is the case in Colorado where original proceedings are brought in the supreme court, the burden of proof iii quo warranto proceedings instituted by the state is always upon the defendant, to establish his right to hold and enjoy the office constituting the subject matter in controversy; and we think it also true that defendant must with particularity allege all necessary facts, showing not only that he was eligible to the office at the time of his election, but he must also allege and prove all essential facts, showing a continuing right to hold that office down to the time of the institution of the proceeding to oust him.
While the attorney general in the information set iorth the facts which he claims show not only that
We have in the foregoing statement given the facts in sufficient detail to obviate any extended discussion of their legal effect, for we have concluded that the statement itself is probably the best vindication of the conclusion which we have reached.
1. The requirement of section 16 of article vi of the constitution, that a person to be eligible to the office of district judge shall, at the time of his election, be an elector within the judicial district, is met by the facts of this case. In Sharp v. McIntyre, 23 Colorado, 102, this court held that one is entitled to vote, and is an elector, only where his domicile or legal or constructive residence is, as distinguished from his actual abiding place. We think that the plaintiff’s domicile was in Lake county at the time of his election in November, 1900, and, therefore, he was eligible to hold, this office. Jain v. Bossen, 27 Colo. 423.
2. Section 2 of article xii of the constitution provides that no person shall hold any office or employment of trust or profit under the laws of the state, without devoting his personal attention to its duties. Defendant insists that this means merely that the
3, A more difficult question arises out of the alleged violation by defendant of section 29 of article vi, which says that all (judicial) officers provided for in the article, excepting judges of the supreme court, shall respectively reside in the district, county, precinct, city or town for which they may be elected or appointed. The word “reside” may, and sometimes does, have different meanings in the same or different articles or sections of a constitution or stat
Defendant was elected to the office in November of 1900, and entered upon the discharge of his duties on the 8th of January, 1901, and this proceeding was instituted on the 9th of the following September, about eight months after the beginning of his term. The statement of facts shows that the only reason he has not continuously, or at all, maintained ' his
We have not hastily or without thorough examination of the able briefs of counsel, followed by full consultation and consideration, reached this conclusion. We are not indifferent to the vigorous argument of counsel for relator that the people of a judicial district have a right to expect and insist upon the maintenance by their district judge of his actual residence at some place within his judicial district, where, at all reasonable times and as cheaply as practicable, access to him may be had by litigants whose business he should, at all seasonable times, be on hand to dispose of as the law directs, and as they have the unquestioned right _to demand. And we also appreciate the potency and soundness of the further argument that if an officeholder finds that his health will be, impaired, or his life jeopardized, by continuing his residence within his district, he ought at once, after that fact is revealed to him, voluntarily to resign and give way to some one who can comply with the mandatory provision of the organic act. The fact that it is found in the constitution, and that it is mandatory—and all persons will concede that it should be obeyed,—is of itself a sufficient justification for this feeling. And yet the defendant has rights which the court should not ignore. He was legally elected to the office by a plurality of the electors, and it is only because of a material violation of some provision of the constitution or laws, for the violation of which a vacancy in the office is the penalty, that defendant should be removed. And although the rule, as we have said, requires him clearly to show a continuing right to hold, this rule is in entire harmony with another of equal potency, which
The rule heretofore issued to show cause is discharged, and the proceeding dismissed.
Writ dismissed.