Conklin v. Armstrong ( 1940 )

Mr. Justice Young

delivered the opinion of the court.

Plaintiff in error, as petitioner, alleging his status as an old age pensioner under article 24 of the Constitution of Colorado and laws enacted in aid thereof, and complaining that he had not received, and was not receiving, a full minimum pension of $45 per month authorized to be paid to him by said constitutional and legislative provisions, procured the issuance of an alternative writ of mandamus directed to the state treasurer, the state auditor, and the members of the executive council of the state of Colorado as respondents, requiring them, by a time fixed in the writ, to set aside and place in the old age pension fund eighty-five per cent of all net revenue accrued and accruing, received and receivable, from “The Public Revenue Service Tax of 1937,” or to show cause for their failure so to do. Respondents demurred to the writ on the ground that it “did not state or contain sufficient or any facts to constitute a cause of action or to enable the court to grant the relief therein prayed for, or for any relief.” The district court sustained the demurrer, and petitioner having elected to stand on the alternative writ, the cause was dismissed and judgment rendered against him for costs. Petitioner assigns the sustaining of the demurrer as error and asks a reversal of the judgment.

It is pointed out by respondents and conceded by petitioner that the same question here presented was before us in the matter of In Re Interrogatories of the Senate, 100 Colo. 342, 67 P. (2d) 1038. At that time the question received our careful consideration and our answer was adverse to the contentions made by petitioner in this case. Notwithstanding our former determination of the matter, we have considered and weighed the contentions and arguments of petitioner and the authorities cited in support of them and we find nothing therein which causes us to doubt the correctness of our former conclusion.

The judgment of the district court accordingly is affirmed.

Mr. Chief Justice Hilliard not participating.