People ex rel. Williams v. Reid

| Colo. | Dec 15, 1887

Helm, J.

This cause is now submitted for consideration upon the following pleadings, to wit, the information, plea, and a general demurrer challenging the sufficiency of the plea. The jurisdiction invoked is original, not appellate. It has been held that original proceedings in this court, by information in the nature of quo warranto., take place under the constitution, not under the code chapter relating to the usurpation of offices or franchises. Also that the changes made by this chapter of the code, “in the form of remedies and in the practice, affect the district courts, not the supreme court.” People v. Curley, 5 Colo. 417. Therefore the sufficiency of the pleadings before us must be tried under the common-law rules of practice, as well as the common-law principles, applicable to such proceedings. -The plea of respondent denies “generally and specifically each and every allegation ” contained in the information, except such as by the plea are specifically admitted. This denial is not in technical common-law language, but it constitutes a substantial traverse of the matters not admitted. Hence, at the present time, we cannot accept as an admitted fact the declaration of the information that Ordway filed his bond, took the oath of office, and duly qualified as county commissioner, prior to the afternoon of January 10th, when he first appeared and acted with the board.

Under the constitution, section 1, article 12, May, as the outgoing incumbent, was clearly authorized to exercise the duties of his office until his successor had duly qualified. Therefore, at the meeting of the commissioners on the forenoon of January 10th, Ordway not having qualified, May was still clothed by law with power to discharge the duties of county commissioner. • He was the de jure as well as de facto incumbent of the office, and his official acts were undoubtedly valid. These conclusions determine this controversy at the present stage of the pleadings. When the board met on the afternoon of January 10 th, respondent had been selected by a vote of two to one to fill the existing vacancy in' the office of county treasurer. He had filed his bond, duly approved, taken the oath of office, and was proceeding in the discharge of his official duties. There was therefore at the time of relator’s alleged election no vacancy for the commissioners to fill. Their resolution attempting to rescind the proceedings of the morning session cannot be held to have re-created the vacancy.

The demurrer must be overruled.

Demurrer overruled.