48 Colo. 436 | Colo. | 1910
Lead Opinion
delivered the opinion of the court:
Upon application of plaintiff, we assumed original jurisdiction of this proceeding, and issued the alternative writ of mandamus, directed to respondent Montez, as county clerk and recorder of Huerfano county, commanding him to permit the relator Foley, as public examiner of the state, to examine the records, books and files of that office, during the ordinary business hours thereof, or to show cause within a day named, why he had not done so.
The writ shows, inter alia, that relator, Foley, was, and is, the duly appointed, qualified and acting public examiner of this state; that respondent, Montez, was, and is, the county, clerk and recorder of Huerfano county; that, on March 31, 1910, the relator, under instructions from the auditor of the state, at the office of the county clerk and recorder, in the county of Huerfano, requested respondent, as such county clerk and recorder, to permit relator, as such public examiner, to examine the books, records and files of that office during the ordinary business hours thereof; that respondent refused to grant the request, and still refuses to allow relator, as such public .examiner, or otherwise, to make the examination ; and that there is no plain, speedy and adequate remedy in the ordinary course of law.
The return to the alternative writ alleges, substantially, that although relator demanded of respondent permission to examine the books, records and -files of his office, the latter did not refuse the request, but is willing for any responsible person, prompted by honest motives, to make an examination of his office; that there is an action pending in the district court of Huerfano county between the parties hereto, involving the same cause of action as
The jurisdiction of this court to grant writs of mandamus and to hear and determine the same, is found in sec. 3 of art. VI of the constitution. "While the power in that respect, there conferred, is apparently unlimited, it, nevertheless, has become the settled rule, that this court will exercise such power, only when it appears some peculiar emergency or exigency exists, or when the questions involved are clearly publici juris,, and then only when satisfied that the issues are not likely to be determined, and the rights of all parties properly protected, and enforced in the lower courts.—Supreme Court Rule 38; The People ex rel. v. Rogers, 12 Colo. 278.
Recognizing this rule, relator set forth facts in his petition for mandamus, which he contends brings the case clearly within the rule. It is alleged that, a petition for mandamus against the respondent, asking the same relief as here, was filed in the district court of Huerfano county on April 4, 1910; that an alternative writ was thereupon granted, returnable April 30th; that respondent made return thereto by motion to quash on the ground, that the act of the general assembly, ch. 192, Session Laws 1909, p. 455, creating the office of public examiner, is unconstitutional ; that on April 30th the motion was argued, and
When it is remembered that the law, creating the office of public examiner, requires that official to examine into the financial affairs of every state, and county public office and officer, and of every state and county institution, penal, reformatory, educational or charitable, at least once each year, and oftener if the-auditor of the state deem it necessary, it is clearly evident, that by the action of the court in granting respondent so long a period of time to make return
Eespondent has attacked its constitutionality and that question must ultimately be determined by this court. Prom the attitude of respondent it is proper to assume that he would continue to question the constitutionality of the law, and further delay would be the result, during which the executive department of the state would be hampered and obstructed in the enforcement of the law, not only by respondent, but likely by other public officers throughout the state. It is, therefore, meet and proper that this court exercise its original jurisdiction to the end, that those whose duty it is to enforce the act, as well as the public officials whose offices come within its terms, speedily know what the law is, and what their duties are in the premises. The act does not relate to matters of private, or merely local concern, but with public offices, officers, funds and institutions. It expressly charges the executive department of the state government with the administration and enforcement of the act throughout the state. In its faithful and thorough administration, every taxpayer and every citizen is vitally interested and affected. It imposes duties upon every state and county officer; seeks to aid each in the administration of his office, and to afford means to discover irregularity and dishonesty therein. If the act is constitutional, no of
The necessity for this court to retain jurisdiction of the case is made more certain by the return of respondent to the alternative writ. It is therein alleged that the judge of the district court gave as his reason for fixing the return of the alternative writ for the 30th day of April, the fact that by statute he was under the necessity of convening the district court of Bent county on the 5th of April; that it was supposed that court would continue in session for the full period of two weeks; that by statute he was required to open the district court in Prowers county on the 19th of April, and it was supposed that the term would continue for the full period of two weeks; that April 30th was, therefore, supposed to be the earliest time at which the court could hear the matter; that on that-day the court adjourned until the 11th of June following, on which date it adjourned for the term; that the next regular term of the district court of Huerfano county will not convene until the first Monday in October-, 1910.
Respondent, however, asserts that this court has no reason to assume that the trial court was not ready and willing to aid and uphold the laws of the state, and protect its officers in the discharge of their duty. To indulge in such presumption is not necessary for the exercise of our original jurisdiction. We might assume the contrary, and yet the necessity for our acting in the premises would be equally certain. If through great press of business, or other
It is next argued that, where facts are controverted, this court should decline to take original jurisdiction. Such is the general rule. It is contended, that an issue of fact was made as to the alleged refusal of respondent to permit the examination of his books; that there was also an issue of fact upon the question as to whether an action of the same character is pending in the district court of Huerfano county; that the good faith of relator, in instituting this action and in demanding an inspection of respondent’s records, is one of mixed law and fact.
While we took evidence upon the question of demand, and likewise upon the question of the dismissal of the suit, we are clearly of the opinion that it was wholly unnecessary. The facts and circumstances of the case, together with the pleadings, clearly establish respondent’s refusal to submit his books, records and files of his office to the examination requested, and likewise disclose the dismissal of the suit. Respondent having alleged that the request to examine was not made in good faith; that if the examination were made, it would be by designing and irresponsible persons, who would not report truthfully and that he was willing for any responsible person, prompted by honest motives, to make the examination, cannot be heard to say that he did not refuse the request made by relator as plead. Such an allegation of nonrefusal, under the circumstances, is trifling with the court, and should never have been interposed. Neither the purpose of the examination, nor the good faith of the relator in making it, have any bearing upon the questions here involved. If the
The return admits that plaintiff paid the costs and ordered the suit dismissed. There is no pretense that a counter-claim was filed. Therefore, under sec. 166 of the Civil Code, the suit was, in effect, dismissed.—Doll v. Slaughter et al., 39 Colo. 51.
Respondent contends, that the legislature had no power to create the office of public examiner. The express language of the act is, ‘ ‘ That the office of public examiner for the state of Colorado is hereby estabished.” It is argued that the general assembly might provide a public examiner for each of the counties of the state, and designate the manner in which they shall be elected or appointed, prescribing likewise the term of office and compensation, but it has no power to create an office “for the state”; that sec. 1 of art. IV of the constitution enumerates the state officers, and having failed to provide for additional state offices in the executive department, none can be created.
Respondent concedes, that the language of this court in Parks v. Soldiers’ and Sailors’ Home, 22 Colo. 93, decides the particular point involved, adversely to his contention, but argues that the point was not necessarily involved in that case, and, therefore, the decision in that respect is obiter. We think otherwise. That case expressly determines that sec. 1 of art. IV of the constitution only provided for such officers of the executive department as the members of the constitutional' convention deemed absolutely necessary, “leaving it to the legislature to create new offices as the growth of the state and
Furthermore, art. IV, sec. 6 of the constitution recognizes and provides for the appointment of officers not enumerated in sec. 1 of art. IV thereof.
It is next contended that the act in question and the title each contain two subjects, and is, therefore, obnoxious to sec. 21 of art. V of the constitution.
The statute, Session Laws 1909, p. 455, supra, is denominated, “An act to create the office of public examiner, and to establish a uniform system of public accounting, auditing and reporting under the administration of the auditor of state, to provide penalties for the violation hereof, and to repeal,” etc. It is argued that, “to create the office of public examiner” is one subject; that “to establish a uniform system of public accounting, auditing and reporting” is quite another, and that the two are separate and distinct, and neither could be included in the other.
Respondent concedes, that if one of the two alleged subjects is corollary to the other, or dependent upon it, or can be carved out of it, the dominant subject may be taken as the title of the act, or as the principal subject with which the legislature was dealing, and the act upheld. Ye think the title of the act in question comes clearly within the rule conceded. It may be true had the title been. “An act to create-the office of public examiner” the legislature could not have provided in the bill thus entitled, for the establishment “of a uniform system of public accounting, auditing and reporting,” but certainly if
In Clare v. People, 9 Colo. 122, 125, it was contended, for reasons like those urged here, that a law then under consideration was unconstitutional, and we there said:
“This prosecution was brought under an act entitled An act to facilitate the recovery of ore taken by theft or trespass, to regulate the sale and disposition of the same, and for the better protection of mine owners. Gen. St. 747.
"It is. urged — First, that the foregoing title contains more than one subject, and, second, that the section under which this conviction took place deals with a subject not clearly expressed therein. Therefore, counsel contend that section 21, article 5, of the constitution, was here violated' by the legislature in two particulars. * * *
"At first glance, three matters appear to be mentioned in the title * * *; but, upon examination, it will be seen that the first two are fully comprehended within the third. Had the legislature been content to name the statute 'An act for the better protection of mine owners, ’ in our judgment both of the matters specifically mentioned would have been covered. Provisions regarding the recovery of ore taken by theft or trespass, and also those regulating the sale and disposition thereof, would naturally be embraced within an act thus entitled. There being one general subject expressed, the fact that the legislature saw fit to incumber this title with two specifications under that subject does not render it obnoxious to the constitutional objection now urged. ’ ’
So, in the ease at bar, had the legislature been content to name the statute, "An act to establish a
The act being constitutional, respondent must submit to it. His other, alleged reasons why he should not be coerced, are of no weight, or worthy of consideration. For over three months he has been obstructing the public examiner in the performance of duties imposed by law. The alternative writ should, therefore, be made absolute, and it is so ordered. Writ made absolute.
Decision en banc.
Mr. Justice G-abbebt dissenting.
Mr. Justice Campbell not participating.
Dissenting Opinion
dissenting:
A case was neither presented in the first instance nor made on the hearing, of which this court should assume original jurisdiction. For these reasons the writ should be discharged, and the proceedings dismissed.
Eule 38 of this court provides, in substance, that in an application made for a writ of mandamus or-any prerogative writ to be issued in the exercise of our original jurisdiction and for which an application might have lawfully been made to some other court in the first instance, the petition must set forth the circumstances which render it necessary that the writ should issue originally from this court, and not from some inferior tribunal.
Suit was originally instituted in the district court of Huerfano county by petitioner which he claims to have dismissed, and the only reason he
On the 4th of April last petitioner instituted an action against respondent, and obtained an alternative writ, returnable on the 30th of that month. For return respondent filed a motion to quash the writ, based upon the ground that the legislature had no power to create the office of public examiner, and that the act creating the office was unconstitutional because, both in its title and in its body, it contained two subjects^ This motion was argued orally on the return day. Counsel for petitioner, at the close of the argument, requested the court to rule upon the question at once, which it declined to do. What was wrong about this action of the court, or wherein, because it declined to rule upon a case as soon as it was submitted, is it subject to criticism, or the charge that it is not discharging its duty? The constitutionality of the act, for the reasons assigned, is at least a serious one, and one which it was not only proper, but the duty of the court, to carefully consider. The cause presented here was submitted on the 5th of the present month, and yet an opinion has neither been handed down nor a decision announced at the time of this writing, although this court has been aided by briefs of counsel for petitioner, an aid which they declined to furnish the lower court. If several judges find it necessary to take time (which it is clear they are justified in doing on account of the questions presented), in order to properly consider a case, upon what theory can one judge be criticised for taking time to determine questions of
It then appears that the district court gave respondent’s counsel twenty days in which to file a brief in support of his motion, and five days to reply to any brief which might be filed by counsel for petitioner. It is submitted that nothing is shown by this action which justifies the claim made by petitioner that the trial judge was guilty of dilatory tactics. No objection appears to have been made by counsel for plaintiff to this order. It is not unusual to give counsel a reasonable time within which to file briefs after a case has been submitted on oral argument. In fact, to refuse this privilege should generally be regarded by the bar as an assumption of knowledge of the law by judges in advance of what they are entitled.
Again, the district embracing Huerfano county contains several counties, and in fixing time for briefs it must be assumed that the judge consulted his con-. venience in discharging his duties to other litigants, and in holding court in other counties of his district. The return to the writ shows this to have been the fact.
It then appears that, later, an additional ten days was given counsel for respondent in which to file their brief. It must be assumed, until there is a showing to the contrary, that the judge had good reasons for granting this extension. There is no such showing.
May 26th counsel for petitioner received the brief of respondent, and at once wrote the judge that no brief would be filed by plaintiff in reply, and again' requested an immediate ruling. Was this fair treatment of the court? Was it not the duty of counsel for petitioner to have aided the court in announcing an earlier ruling on the motion by filing a brief com-
June 11th the court overruled the motion to quash. Prom the time the brief of respondent was filed it does not appear the court took an unreasonable period for the consideration of the case, when it is borne in mind that during that period other judicial duties devolved upon him. There are cases in this court which have been submitted much longer, with no decision as yet.
When the motion was overruled, the court gave respondent thirty days tó plead. Why this order was made we are not informed, but we must assume that proper showing therefor was made. At least, the attorney general is not in a position to complain. He was not present when the ruling was made; he did not ask for any order. His interest in the case seems to have been confined to letters and telegrams, urging an immediate ruling, without regard to what it might be; and now, after a ruling has been made, in these circumstances the charge is made that the court was willfully dilatory. There is nothing upon which to' found such a charge. Shortly, after the ruling the court adjourned for the term. • The attorney general cannot complain of this action. He made no request for a special session or for an adjourned term; and if it appears the cause was somewhat delayed in the district court, it is submitted the attorney general should be held, in a measure, responsible for this delay. It was his duty to give the case such attention as would have exhibited efforts on his part to secure an early final determinaton of the cause on its merits.
The law under which petitioner claims the right to act was passed by the Seventeenth general assembly with an emergency clause, and took effect March 29, 1909. It provides that ■ the officers and offices embraced within the act shall be examined by the public examiner or other officials named at least once a year. It appears from the record that no offer was made by either of these officials to examine the office of the respondent for more than one year after the law took effect. Having neglected the plain duty imposed by law, it comes with poor grace now, on the part of petitioner, to insist that the refusal of respondent to permit an examination of the affairs of his office presents a question of such serious and grave import, and of such transcendent interest to the state that the original jurisdiction of this court should be exercised to compel the respondent to obey the law which petitioner himself has neglected to observe. It is only the office of the respondent which is involved. Not another official or officer named in the act has refused to submit to an examination. The petitioner has not been prevented in executing the law under which he assumed to act except in this one instance; at least, there is no showing to the contrary. To warrant this court in exercising the orig
The office of the county clerk and recorder is of minor importance,' so far as the state is concerned. The only funds collected by the incumbent of that office in which the state is interested consists of hunting license fees, which, in the aggregate, amount to but a small sum. The refusal of the respondent to permit the examination which it is claimed he refused does not embarrass the state or its officials in executing the act of 1909, in so far as other officers' and officials are involved. The interests of the state at large are not involved. It would not have suffered injury of any moment, even if the contention of the petitioner is right in every particular, if this court had, as it should, refused to take original jurisdiction of the case he presented. In making these observations it is not intended to criticise any of the state officials interested in, or connected with, the case. If this court will assume original jurisdiction of a case which does not affect the state at large, the officials are not to be blamed for presenting it. The remedy lies with the court in refusing to take original jurisdiction of a case of such trivial nature. This, it is respectfully submitted, is what the court should have done. The interests of the state would have been far better served if the time consumed in hearing and considering this case had been devoted to the determination of cases brought here in the regular way.
For the reasons given the writ should be discharged and the proceedings dismissed, and it is, therefore, unnecessary to consider the other questions argued by counsel.
