People ex rel. Lawson v. Stoddard

34 Colo. 200 | Colo. | 1905

Mr. Justice Maxwell

delivered the opinion of the court.

Appellants seek to oust appellees from the office of county commissioner of the city and county of Denver, which office they allege in their amended complaint appellees had unlawfully usurped and intruded into.

The general allegations of the amended complaint are substantially the same as.those stated in People ex rel. etc. v. Alexander, No. 4976, except that here the allegations relate to the office of county commissioner of the city and county of Denver.

In this case it appears that the charter convention of the city and county of Denver of 1904 abolished the office of county commissioner and designated the seven members of the'board of supervisors of the city and county of Denver to perform the acts and duties required of county commissioners to be done by the constitution or by the general laws so far as applicable.

In addition to the ground that the amended complaint did not state facts sufficient to constitute a cause of action a demurrer raised the objections that there is a defect and misjoinder of parties plaintiff and defendant 5 that two causes of action are improperly united and that the complaint is ambiguous, unintelligibble and uncertain.

As we read tbe grounds specified in tbe demurrer upon which tbe above objections to tbe amended complaint are based we are of the opinion that excepting tbe general demurrer all other objections may be comprehended within tbe objection as to misjoinder of parties, and we shall so dispose of the matter.

The demurrer was a joint demurrer of all the defendants.

In Empire Co. v. Board, 21 Colo. 244, 247, it is ruled that the objection that there is a misjoinder of parties defendant cannot be raised by a joint demurrer of all the parties.

Section 294, Civil Code of Procedure, provides that, “When several persons claim to be entitled to the same office or franchise one action may be brought against all such persons in order to try their respective rights to the same office or franchise."

People v. Prewett, 124 Cal. 7, was a proceeding in the nature of a quo warranto instituted by three plaintiffs against three defendants to test the right of the respective parties to the office of school trustee.

In the course of the opinion the court said: "Appellants ’ objection to the complaint on the ground that the three causes of action are improperly united is not well taken. Sec. 808 of the Code of Civil Procedure provides: ‘When several persons claim to be entitled to the same office or franchise one action may be brought against all such persons in order to try their respective rights to such office or franchise.’ The office or franchise here was the same. The three trustees constitute a board of entity charged with the performance of the same public duty; and where the right of each member of the board depends upon the same facts as is the case here the question is whether the board composed of the three persons has a legal existence and the right to exercise the- powers conferred upon it as such.”

People v. Kohn, 7 Utah 352, was a proceeding in quo warrcmto to determine the right of three relators to the offices of councilmen of Salt Lake City, which offices were held by three respondents; by demurrer to the complaint the same objections were urged as are here presented. The court said: “"When several persons claim to be entitled to the same office or franchise one action may be brought against all such persons in order to try their respective rights to such office or franchise. — Comp. Laws 1888, sec. 3534. The joinder of defendants under this statute was intended to protect the rights of the people and to prevent a multiplicity of actions to determine the same question based upon one and the same or substantially the same right and relating to the same kind or character of office, and where the action and defense would necessarily be the same or involve substantially the same rights. * * * The action was therefore properly brought by the people in behalf of the three relators against the three defendants to determine which set of these persons claiming title were entitled to hold the franchise and represent the fourth precinct in the city council.” Citing People v. Murray, 8 Hun 577; People v. Woodbury, 14 Cal. 43, and People v. Page, 6 Utah 353.

Except as above stated this record presents the same legal propositions ruled in People ex rel. etc. v. Johnson, No. 4850.

For the reasons herein stated and following the ruling in the Johnson case the demurrer shpuld have been overruled.

The judgment rendered by the court below will he reversed, set aside and for naught held, and judgment rendered and entered in this court in favor of appellants, William Lawson, Eugene McCarthy and Thomas A. Uzzell, and against appellees, John N. Stoddard, A. J. Spengel, Benjamin E. Woodward, George E. Smith, Roady Kenehan, Daniel L. Webb and A. IT. Aronson, as prayed in the amended complaint, and that appellants have judgment for costs.

Judgment accordingly.

Decision en banc.

Mr. Justice Steele and Mr. Justice Gunter dissent.