Pat REALE, Petitioner, v. BOARD OF REAL ESTATE APPRAISERS, Respondent.
No. 93SA319.
Supreme Court of Colorado, En Banc.
Sept. 12, 1994.
880 P.2d 1205
Gale A. Norton, Atty. Gen., Stephen K. ErkenBrack, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Donna L. Rice, Asst. Atty. Gen., Regulatory Law Section, Denver, for respondent.
Chief Justice ROVIRA delivered the Opinion of the Court.
The question in this case is whether the General Assembly can add qualifications for holding constitutionally created offices in addition to those set forth in the constitution itself. The trial court concluded that it could and thus, entered a permanent injunction prohibiting Pat Reale, the elected assessor of Adams County, from continuing to hold the office of Adams County Assessor. We reverse and remand with directions to dismiss the complaint.
I
In 1990, the General Assembly passed the Real Estate Appraiser‘s Act,
The State Board of Real Estate Appraisers (the Board) is charged with enforcing the Act. In 1993, the Board filed an action in the district court and requested a preliminary injunction seeking to prevent Reale from performing the duties of his office on the grounds that under the Act, he was not able to do so legally. In response, Reale argued, inter alia, that the Act was unconstitutional because the General Assembly did not have the power to impose additional qualifications for holding a constitutionally created office other than those set forth in the constitution itself.
The trial court declined to issue a preliminary injunction. However, after a trial on the merits, the court concluded that the Act served a compelling state interest, i.e., fair and accurate tax assessments, and was constitutional. Further, it held that the Act did not violate the guarantee of equal protection under the law and that the court was empowered to enjoin Reale from holding office. It entered a permanent injunction barring Reale from holding office as Adams County Assessor.
On appeal Reale reiterates his qualification argument and also contends that the licensing requirements of the Act violate his right to equal protection of the law.3
II
The office of county assessor is created by
A
While no Colorado court has directly decided this question, it has been considered by the courts of many other states. “The law is well established that, where a state constitution provides for certain officials and names the qualification for such officers, the legislature is without authority to prescribe additional qualifications.” State v. Welch, 198 Or. 670, 259 P.2d 112, 114 (1953). See also Whitney v. Bolin, 85 Ariz. 44, 330 P.2d 1003 (1958); Thomas v. State, 58 So. 2d 173 (Fla. 1952); People v. McCormick, 261 Ill. 413, 103 N.E. 1053 (1913); State ex rel. Palagi v. Regan, 113 Mont. 343, 126 P.2d 818 (1942); Gibbany v. Ford, 29 N.M. 621, 225 P. 577 (1924); Cornell v. McAlister, 121 Okla. 285, 249 P. 959 (1926); State v. Betensen, 14 Utah 2d 121, 378 P.2d 669 (1963); C.T. Foster, Annotation, Legislative Power to Prescribe Qualifications for or Consideration of Eligi-
The rationale for the rule is expressed by the maxim, “expressio unius est exclusio alterius” - the expression of one thing is the exclusion of another. Cornell, 249 P. at 960.
The qualifications fixed in the Constitution are exclusive for the reason that if it were not intended by the framers thereof to fix all the qualifications, then it must have been intended to fix only a part and leave it to the legislature to fix others. Such a view is inconsistent with accepted constitutional construction that the enumeration of certain specified things in a Constitution will usually be construed to exclude all other things not so enumerated.
While the text of the constitution, rules of constitutional construction, and the precedents of this court all support the adoption of the majority rule, see infra pp. 1208, it is important to recognize that this rule is grounded, ultimately, on unassailable principles of democratic governance. If the qualifications set out in
As such, the most fundamental right reserved to the people - the right to vote for representatives of their choice - would hinge
[I]f the legislature possesses the power to vary the constitutional qualifications for office by adding new requirements or imposing additional limitations, then eligibility to office and freedom of elections depend, not upon constitutional guarantees, but upon legislative forbearance. If the legislature may alter the constitutional requirements, its power is then unlimited, and only such person may be elected to office as the legislature may permit.... [W]hen the Constitution undertakes to prescribe qualifications for office, its declaration is conclusive of the whole matter, whether in affirmative or negative form.
In a constitutional democracy the principle that the people must be permitted to vote for candidates of their choosing and in conformity with constitutional mandates is beyond question. Indeed, this principle is one of the primary features which distinguishes a constitutional democracy from other forms of government. That the right of the people to choose their representatives could hinge not on constitutional guarantees but on the predilections of the legislature, no matter how well-intentioned, is contrary to this elemental postulate of democratic government.
B
Keeping this justification for the majority rule in mind, we turn to the provisions of the Colorado Constitution. See Legislative Power to Prescribe Qualifications at 155 (“the question of whether a given state legislature has power to prescribe eligibility qualifications for a constitutional office depends, essentially, upon the relevant content of the state constitution“).
The Colorado Constitution, unlike the federal constitution, does not comprise a grant of but rather, a limitation on power. All power which is not limited by the constitution is vested in the people and may be exercised by them via their elected representatives so long as the constitution contains no prohibition against it. Colorado State Civil Serv. Employee Ass‘n v. Love, 167 Colo. 436, 448 P.2d 624 (1968). This principle supports the conclusion that the legislature does not have the power to impose additional qualifications for holding the office of county assessor.
Second, it is significant to note that of the many constitutional provisions prescribing qualifications for constitutional offices, only those for county judges, school superintendents, and county attorneys specifically provide that the legislature has discretion to establish additional qualifications for those offices.
Third, we conclude that our precedent, rather than conflicting with the majority rule as the Board argues, actually supports it. For instance, in Yenter v. Baker, 126 Colo. 232, 248 P.2d 311 (1952), we considered whether a statute that provided that initia-
In holding that where “the Constitution ... sets a limitation, the legislature may not make any other limitation than those provided in the Constitution,” id. at 241, 248 P.2d at 316, we relied on People v. McCormick, 261 Ill. 413, 103 N.E. 1053 (1913). In McCormick, the Illinois Supreme Court considered whether the legislature could increase the residency requirements beyond that set forth in the Illinois Constitution, which provided that no person shall be elected to any office “who shall not have resided in this state one year next preceding the election.” Id., 103 N.E. at 1056. The court ruled that, where the constitution declares the qualifications for office, they are exclusive and it is not within the power of the legislature to change or add to them. Id. The holding of Yenter supports the general rule that constitutionally imposed requirements for holding constitutional offices are exclusive.6
Thus, we conclude that the qualifications for the office of county assessor are fixed by the constitution and that the imposition of additional qualifications by the General Assembly is prohibited.
C
We reject the rule adopted by some courts which have held that negatively phrased qualifications for specific offices do not imply that those qualifications are exclusive, but set only minimum requirements that may be supplemented by the legislature. See, e.g., Boughton v. Price, 70 Idaho 243, 215 P.2d 286 (1950). In our judgment, to embrace the rule of Boughton requires rejection of the “accepted [principle of] constitutional construction that the enumeration of certain specified things in a constitution will usually be construed to exclude all other things not so enumerated.” Whitney v. Bolin, 330 P.2d 1005. See also 1 J. Story, Commentaries on the Constitution of the United States § 625, 461 (1891) (“It would seem but fair reasoning, upon the plainest principles of interpretation, that when the Constitution established certain qualifications as necessary for office, it meant to exclude all others as prerequisites.“). The rationale for this rule was well stated by the Arkansas Supreme Court:
The qualifications fixed by the constitution to be county judge in this state inferentially prohibit the legislature from fixing additional qualifications. Why fix them in the first place if the makers of the constitution did not intend to fix all the qualifications required, and why fix only a part of them and leave it to the legislature to fix other qualifications? There is no reasonable answer to these questions. The makers of the constitution knew exactly what qualifications a county judge should have and fixed them, and of course, fixed all of them and not a part of them. The makers of the constitution intended to cover the whole subject of the qualifications for a county judge. Had the makers of the constitution intended otherwise they would have created the office of the county judge with direction to the legislature to fix their qualifications.
Mississippi County v. Green, 200 Ark. 204, 138 S.W.2d 377, 379 (1940).
This reasoning is particularly persuasive as applied to the Colorado Constitution given the fact that the framers did express their intent to permit the legislature to fix additional qualifications for certain offices, but declined to so provide for the office of county assessor. See supra pp. 1208-1209.7 Consequently, we conclude that the negative phrasing of
The Board, while conceding that the weight of authority is in accordance with the majority rule, argues that for a number of reasons Colorado should reject that rule. First, it contends the rule that general requirements set forth in the constitution are not exclusive for holding a constitutionally created office is supported by the precedent of this court. In support of this contention, the Board cites Darrow v. People, 8 Colo. 417, 8 P. 661 (1885). In Darrow, the plaintiff argued that he was unlawfully disqualified from holding the office of alderman of the city of Denver. His disqualification was based on his failure to pay taxes in Denver during the year prior to his election - a requirement imposed by the legislature as a prerequisite to holding the office of city alderman.
Darrow is clearly distinguishable from the present case because the office of alderman is a legislatively, not constitutionally created office. Id. at 421, 8 P. at 664. This distinction is critical because, as a general rule, a legislative body has expansive power over offices created by it:
There is a distinction between offices created by the Constitution and those created by statute. Where an office is created by statute, it is wholly within the power of the Legislature creating it. The length of term and mode of appointment may be altered at pleasure, and the office may be abolished altogether.... It is not so of constitutional offices.
McCormick, 103 N.E. at 1057. See also Legislative Power to Prescribe Qualifications at 168. Darrow is not controlling here.
The Board also argues that the settled practice of the General Assembly indicates that the constitutional requirements are not exclusive. It points out that numerous requirements for office have been imposed by the legislature on other constitutionally created offices. The short response to this argument is, of course, that prior unconstitutional enactments do not justify later ones.
Giving the argument more credit than perhaps it is due, it is significant to note that most of the requirements cited by the Board are not analogous to those at issue here. To the contrary, the majority of the requirements cited to by the Board are bond and oath requirements. Bond and oath requirements traditionally are not considered qualifications for eligibility to office, but rather requirements necessary to “qualify” to take office under provisions such as
Consequently, we conclude that none of the reasons advanced by the Board are persuasive.
III
The Colorado Constitution reserves no authority in the state legislature to change, add to, or diminish the qualifications for constitutionally created offices. Accordingly, we hold that the licensing requirements of the Act as applied to county assessors are unconstitutional and that Reale cannot be enjoined from holding the office of Adams County Assessor.
The judgment is reversed and the case remanded to the trial court with directions to dismiss the complaint.
Justice ERICKSON dissenting:
I respectfully dissent. This is an original proceeding filed pursuant to C.A.R. 21 that was alternatively styled as a petition for certiorari. The district court for Adams County permanently enjoined Pat Reale (Reale) from continuing to hold the office of Adams County Assessor. We elected to treat the original proceeding as a petition for certiorari before judgment under C.A.R. 50. I would affirm the district court‘s permanent injunction.
The district judge made the following factual and legal determinations:
The office of county assessor is responsible for the listing and valuation of all real property located in the county. The duties of the office include the separate appraisal of each tract or parcel of land in the county.
C.R.S. 39-5-104 . Each county assessor is responsible for preparing and certifying an annual Abstract of Assessment cataloging all taxable property and a Certificate of Value which is submitted to each taxing authority in the county showing the total valuation for assessment of property within the territorial limits of the taxing district.C.R.S. 39-5-128 . Thus, the basic and primary responsibility of a county assessor necessarily involves the appraisal of real property.
In 1990, the Colorado General Assembly enacted
As part of the legislative enactment,
The petitioner, Reale, is the duly elected Adams County Assessor and has served in that capacity for many years. The Colorado Board of Real Estate Appraisers (Board) is charged with the responsibility of enforcing the Real Estate Appraisers Act (Act).
I
The majority acknowledges that, “the question of whether a given state legislature has power to prescribe eligibility qualifications for a constitutional office depends, essentially, upon the relevant content of the State Constitution.” C.T. Foster, Annotation, Legislative Power to Prescribe Qualifications for or Consideration of Eligibility to Constitutional Offices, 34 A.L.R.2d 155 (1965). The relevant provisions of the Colorado Constitution do not foreclose the General Assembly from imposing additional qualifications for the office of county assessor.
All of the powers granted to the federal government were set forth in the United States Constitution when it was adopted. All powers in Colorado are reserved to the people when not limited by the Colorado Constitution. The power vested in the people of Colorado is exercised by the people‘s elected representatives. District Landowners Trust v. Adams County, 104 Colo. 146, 89 P.2d 251 (1939).2 The General Assembly, as the representatives of the people, may enact legislation that reaches any reasonable governmental end and does not conflict with the Colorado Constitution. In People ex rel. Rhodes v. Fleming, 10 Colo. 553, 559, 16 P. 298, 301 (1887), we said:
[W]e look to the constitution, not for a grant of the power, but to ascertain wheth-
er the exercise of such power is prohibited; and, if it is not prohibited, the act is valid.
The majority finds an implied limitation upon the General Assembly‘s power based upon the doctrine of “expressio unius est exclusio alterius” (the inclusion of one thing is the exclusion of another).4 The analysis based upon the doctrine is flawed. The doctrine of “expressio unius est exclusio alterius” is inapt when the constitution limits, rather than grants, power. When a constitution grants authority, no more than what is specifically enumerated is granted. Cornell v. McAlister, 121 Okla. 285, 249 P. 959 (1926). Conversely, when a constitution limits power, all powers not specifically limited are presumptively retained by the people‘s representatives. District Landowners Trust, 104 Colo. at 150, 89 P.2d at 253 (1939). The Colorado Constitution preserves the power of the people to act through their elected representatives in the General Assembly in the absence of an express or implied constitutional limitation.
As applied to the Colorado Constitution “expressio unius est exclusio alterius” does not reflect constitutional intent. The implication drawn from the doctrine is misleading. Where the Colorado Constitution seeks to strip the General Assembly of power, it states that the “General Assembly shall have no power.”6 If the framers of the constitution sought to limit legislative discretion in this instance, they would not have depended
II
This court addressed concerns relevant to this case in Alexander v. People, 7 Colo. 155, 2 P. 894 (1883). In Alexander,
In upholding the statute, Alexander held that “[l]egal presumptions are in favor of the integrity and wisdom of legislators, as well as the validity of their enactments.” Id. at 166, 2 P. at 900. We must presume such validity until a constitutional conflict is shown beyond a reasonable doubt. Id.; see Ogden v. Saunders, 25 U.S. (12 Wheat.) 213, 6 L.Ed. 606 (1827).8
Yenter v. Baker, 126 Colo. 232, 248 P.2d 311 (1952), also supports a finding that the General Assembly may impose additional qualifications upon constitutionally-created offices. The court in Yenter held that where “the Constitution as part of a self-executing provision sets a limitation, the legislature may not make any other limitation than that provided in the Constitution.” Id. at 241, 248 P.2d at 316. The provisions at issue in this case cannot be considered “self-executing“, especially in light of the numerous pieces of ancillary legislation passed to supplement them. See n. 11; see also Black‘s Law Dic-
tionary 1220 (5th ed. 1979) (defining “self-execution constitutional provision“: “[c]onstitutional provision is not ‘self-executing’ when it merely indicates principles without laying down rules giving them force of law“).
III
A legislature may impose additional qualifications for constitutional offices if the constitutional provision is general and stated in the negative. Both
In Darrow v. People, 8 Colo. 417, 8 P. 661 (1885), the court upheld the imposition of additional statutory requirements beyond the Colorado constitutional mandate that “no person, except a qualified elector, shall be elected or appointed to any civil or military office in the state.”
But it will be observed that the language used is negative in form; that it simply prohibits the election or appointment to office of one not a qualified elector ... other qualifications are absolutely essential to the efficient performance of the duties connected with almost every office. And certainly no doubtful implication should be favored for the purpose of denying the
right to demand such additional qualifications as the nature of the particular office may reasonably require. We do not believe that the framers of the constitution, by this provision, intended to say that the right to vote should be the sole and exclusive test of eligibility to all civil offices, except as otherwise provided in the instrument itself; that no additional qualifications should ever be demanded, and no other disqualifications should be imposed.
Id. at 420-21, 8 P. at 663-64.9
The majority also cites Boughton v. Price, 70 Idaho 243, 215 P.2d 286 (1950). In Boughton, the constitutional requirements for district court judge did not bar seventy-year-old candidates from seeking the office but an Idaho statute did. The Idaho Supreme Court, in upholding the statute, said:
[W]here the constitution affirmatively and clearly prescribes the qualifications for eligibility for a constitutional office, it is not within the power of the legislature to change, add to or take from such qualifications unless granted such power by the constitution.
....
[W]here the constitution has imposed some qualifications, particularly in negative form, upon the constitutional officers, but not exclusive ones, the legislature may add such others as are reasonable and proper and not in conflict with the constitutional provisions: Glasco v. State Election Board, 121 Okla. 119, 248 P. 642 [(1926)]; State ex rel. Hartford v. Craig, 132 Ind. 54, 31 N.E. 352, 16 L.R.A. 688, 32 Am.St.Rep. 237 [(1892)]; Throop on Public Officers, p. 82;
Mechem on Public Officers, Section 66, pp. 22-23; State ex rel. Workman v. Goldthait, [172 Ind. 210, 87 N.E. 133, 19 Ann.Cas. 737 (1909)], and authorities cited therein; Fordyce v. State, [115 Wis. 608, 92 N.W. 430 (1902)]; State ex rel. Attorney General v. Covington, 29 Ohio St. 102 [ (1876)]; Darrow v. People, 8 Colo. 417, 8 P. 661 [(1885)]; State ex rel. Thompson v. McAllister, 38 W.Va. 485, 18 S.E. 770, 24 L.R.A. 343 [(1893)].
Id. at 289, 290 (emphasis added).
The New Mexico Supreme Court reached a similar conclusion on similar grounds in Gibbany v. Ford, 29 N.M. 621, 225 P. 577 (1924):
[T]he Legislature has no power to add restrictions upon the right to hold office beyond those provided in the Constitution, because the constitutional provision is not a negative one providing that no person shall be eligible to hold an office unless he possess certain qualifications, as is often the case in other states, but is a positive provision, giving the right to every person possessing the qualifications therein set forth to hold office....
IV
The qualifications established by the Act ensure that an assessor can adequately perform his job. The legislation was enacted pursuant to a request by the Board of Real Estate Appraisers and supplements Title XI of the Financial Institutions Reform, Recovery and Enforcement Act of 1989.
Because there is a sufficient “nexus ... between the office of assessor and the need to verify the skills ... by an examination,” the additional qualifications are reasonable. See Landis v. Ward, 117 Fla. 585, 158 So. 273 (1934) (holding valid a statute requiring county surveyors to be registered); State ex rel. Hehr v. Berry, 55 Ohio App. 243, 9 N.E.2d 699 (Ohio App. 1936) (holding valid a requirement that county engineers be registered professional engineers or licensed registered surveyors); see also People ex rel. Odell v. Flaningam, 347 Ill. 328, 179 N.E. 823 (1932) (holding valid a requirement that superintendent of school hold a certain kind of teaching certificate); Jansky v. Baldwin, 120 Kan. 332, 243 P. 302 (1926) (same).
I would therefore affirm the district court and uphold the permanent injunction prohibiting Reale from continuing to serve as the Adams County Assessor.
Notes
(4)(a) Subject to the provisions of
Section 8. County officers - election - term - salary. There shall be elected in each county, at the same time at which members of the general assembly are elected, commencing in the year nineteen hundred and fifty-four, and every four years thereafter, one county clerk, who shall be ex officio recorder of deeds and clerk of the board of county commissioners; one sheriff; one coroner; one treasurer who shall be collector of taxes; one county superintendent of schools; one county surveyor; one county assessor; and one county attorney who may be elected or appointed, as shall be provided by law; and such officers shall be paid such salary or compensation, either from the fees, perquisites and emoluments of their respective offices, or from the general county fund, as may be provided by law. The term of office of all such officials shall be four years, and they shall take office on the second Tuesday in January next following their election, or at such other time as may be provided by law. The officers herein named elected at the general election in 1954 shall hold their respective offices until the second Tuesday of January, 1959 (emphasis added).
Qualifications for the positions of governor and attorney general are stated in
Similarly,
If the framers of the Constitution had intended to take away from the Legislature the power to name disqualifications for office, other than the one named in the Constitution, it would not have been left to the very doubtful implication which is claimed from the provision under consideration.
People v. McCormick, 261 Ill. 413, 103 N.E. 1053, 1057 (1913) (quoting State v. Covington, 29 Ohio St. 102, 118 (1876)).
Thus, if negative phrasing is dispositive of the authority of the legislature to prescribe additional qualifications for county assessor, its power would extend to qualifications for governor, judicial offices and the legislature itself. The legislature would effectively control who could hold these offices, dramatically curtailing the most fundamental right reserved to the people, the right to have persons they elect remain in office. The court also said that “[w]hen the lowest limit only is fixed in the fundamental law, the legislature may act without restraint in the ascending scale, as we have before stated, and having fixed in the statute the vote which shall be required, it becomes the paramount law, and nothing is left for implication.” Alexander at 165, 2 P. at 899.
The General Assembly has also enacted bond and oath requirements for a number of offices specified by the Constitution. See, e.g.,