Stocknan v. Brooks

17 Colo. 248 | Colo. | 1892

Chief Justice Hayt

delivered the opinion of the court.

We shall consider only those assignments of error which have been argued in this court. It is claimed that the amendment of 1885 could not be enacted under the title selected. In other words, that the legislation is obnoxious to the constitutional provision requiring the subject-matter to be clearly expressed in the title of the act. The title of the original act, to which this act is amendatory, is embraced in the title to the amendment, viz.:

“ An Act to amend section one hundred and twenty-seven, of an act entitled ‘ An Act concerning counties, county officers and county government, and repealing laws on these subjects.’ Approved March 24, 1877.”

It has been repeatedly held that the constitutional provision invoked by appellant is sufficiently complied with, so long as the legislation sought to be overthrown is fairly germane to the subject-matter expressed in the title. Golden Canal Co. v. Bright, 8 Colo. 144; Clare et al. v. The People, 9 Colo. 122; Dallas v. Redman, 10 Colo. 297.

The county clerk is a county officer, expressly so designated in the constitution, and as such he is embraced in that portion of the title which advises us that the act is one “ concerning county officers'.” It might be difficult to suggest a more appropriate title in this respect than the one chosen. In re Breene, 14 Colo. 401. Chief Justice Helm, speaking for the ■ court in a carefully considered case said, “ That it (the constitutional provision) should be liberally and reasonably interpreted' so as to avert the evils against which it is aimed, and not to unnecessarily obstruct legislation.”

The amendment here under consideration deals directly with the duties of one of the county officers, to wit; the county clerk. It relates to the property of the county and provides a rule for the government of the custodian of its records. It was undoubtedly adopted for the purposé of conferring a privilege which did not exist under the original statute as construed by the court in Bean v. The People ex. rel., 7 Colo. 200. This court then held that the county clerk was not bound to allow abstract makers to use his office and the county records for the purpose of making abstracts generally — that such was not the legislative intent of the act. There can be no doubt of the contrary being the intent of the amended act. Its language is conceded to be too plain to admit 'of doubt upon this question.

No quesiion was then raised or considered in reference to the title. The act passed unchallenged in this particular: The claim being that the duty of the clerk was sufficiently manifest as the act then read. The court decided against this claim, and the amendment followed at the next session of the general assembly. So far as the clerk is concerned the right of legislation, under the title chosen, is too plain for argument. And although this change in his duties may be of benefit to others the act cannot, for this reason, be held obnoxious to the constitutional provision invoked.

. It is contended in this case that the petition is fatally defective in that it'does not show that petitioner did not have all the information that could have been acquired by the enforcement of the writ of mandate.

The petitioners do, however, allege and state the fact to be that the defendant repeatedly refused to allow th.em to examine the records or make memoranda therefrom although often requested so to do. This allegation is sufficient. By the terms of the act any person has a right to inspect the records, whether such person was engaged in the business of abstracting or not. The act of the defendant was in direct violation of the statute. Even if petitioners had the desired information they had the' right under the statute to verify their information from time to time. Moreover, the public records of a county are being changed from day to day, and the. petition affirmatively shows that repeatedly and for a long time petitioners had been refused access to such books. It is unreasonable to presume that no records affecting any titles to property situate in the county had been made during such period. Under the act, respondent undoubtedly had the right to make reasonable regulations concerning the use of the records by the public. And we are of the opinion that those engaged in the abstract business, as were plaintiffs, could have been made subject to such,, rules. . If any, however, rules had, in fact, been made and were in force at the time, the respondent should have pleaded them in case he based his refusal upon any failure of the plaintiffs to comply with same. This he has nob done, and we must assume either that no such rules, in' fact, existed at the time, or if they did exist that the refusal was not based upon any failure to comply therewith. • ■ '

Upon the return day the defendant appeared and moved to quash the writ. This motion was overruled and the defendant was thereupon required to further plead, on or before seven o’clock P. M. of the same day. The brevity of the time thus allowed is assigned as error. • At what hour this order was made does not appear. Much must be' left to the discretion of the trial courts in such matters. In this case it does not appear that such discretion was abused. ■ 'That mandamus is the proper remedy in cases of this nature is too well settled to admit of controversy. None of the errors urged against the judgment of the district court can be sustained, and the judgment will accordingly be affirmed.'

Affirmed.