People ex rel. Stidger v. Horan , 34 Colo. 304 ( 1905 )

Mr. Justice Maxwell

delivered the opinion of the court.

In all essential particulars this case does not' differ materially from the county officers cases decided by this court June 23, 1905, except as hereinafter stated.

The amended complaint alleges that Horan, defendant in error, without warrant or authority of law, is usurping and intruding himself into the office of and unlawfully exercising the functions, powers and duties of coroner of the city and county of Denver; that November 8, 1904, a general election was held under and by virtue of the constitution and laws of this state, at which election county and precinct officers were voted for; that plaintiff and relator, Rollins, was the candidate of the Republican party, and defendant in error, Horan, was the candidate of the Democratic party; the eligibility of Rollins for such office is alleged; that Rollins was elected and received a, certificate of election from the temporary election commission of the city and county of Denver; that the term of office to which he was elected began January 10,1905; that Eollins duly qualified by filing with the proper officers his official bond and oath of office ; that demand was made by Eollins upon Horan for the office of coroner, which office Horan claimed to be entitled to hold under and by virtue of an election thereto' held May 17, 1904, under and pursuant to the charter of the city and county of Denver, alleged to have been adopted pursuant to article XX of the constitution; that demand for the office was refused.

A demurrer to- the amended complaint was overruled and defendant in error filed his answer and amended answer to' the amended complaint, which amended answer was divided into three parts, which for convenience of reference will be denominated first defense, second defense and third defense.

The first defense denies the election of Rollins, the usurpation charged and the filing and approval of Ms official bond and oatb of office; admits the issuance of a certificate of election to Rollins by the temporary election commission and in its final analysis admits all other material averments of the amended complaint.

The second defense avers the election of Horan to the office of coroner of the county of Arapahoe November, 1901, his eligibility for office and entry upon the discharge of the duties thereof in January, 1902; ' his election as coroner of the city and county of Denver at the time of the adoption of article XX in 1902 by the vote of the people of the whole state, and by the same vote which adopted article XX, and that by such election he was entitled to hold said office until an election was held under and by virtue of and pursuant to a charter for'the city-and county of Denver to be adopted as provided for by article XX; the adoption of a charter for the city and county of Denver pursuant to article XX; the election held under such charter of May 17, 1904, at which election Eollins was also, a candidate and at which Horan was elected coroner of the city and county of Denver for the term of four years from June 1, 1904; the issuance to. Horan by the. temporary election commission of a certificate of election, his qualification for and entry upon the discharge of the duties of said office and his. right to hold said office by virtue of such election; and that Eollins is estopped from claiming title to the office of coroner under and by virtue of the November, 1904, election by reason of his candidacy at the election of May, 1904.

The third defense is an attempt to convert a proceeding in quo warranto into a statutory election contest. •

A general demurrer to the second and third defenses was overruled and reply filed without waiver of the demurrer to the second and third defenses.

The reply, after admitting several immaterial averments of the answer, denied each and every allegation thereof.

Trial to- the court without a jury resulted in a judgment to the effect that Rollins take nothing by reason of his suit and that Horan recover his costs, from which judgment an appeal was taken and perfected to this court.

The transcript of the record was filed in this court June 6,1905; June 8, 1905, a motion to advance, the cause was filed and notice of a hearing on said motion served upon Horan and his counsel; June 21, 1905, counsel for Horan entered his appearance in this court and at the same time filed a protest against the making of any order dispensing with the filing of abstracts and briefs and oral arguments herein; July 26, 1905, counsel for Horan made application for an order on Rollins to' show cause why he should not be adjudged guilty of contempt of this court and punished therefor, which, application was supported by the affidavit of Horan. An order was entered the same day requiring Rollins to show cause on or before the first day of the September, 1905, term; August 25, 1905, a motion to dismiss the appeal was filed. Subsequent to the foregoing proceedings numerous orders relating to the filing of briefs in the various matters pending and the oral argument of the cause had been entered, all of which orders were complied with by counsel for both parties.

Oral argument was had September 21, 1905, and the cause finally submitted on that day.

The foregoing recital of the dates of the various orders set forth becomes important in the consideration of the motion to dismiss the appeal.

The motion to dismiss the appeal is upon the ground that the judgment appealed from does not amount, exclusive of costs, to $100, and does not relate to a franchise or freehold.

The motion to dismiss the appeal must he- allowed.

This court has jurisdiction to review the judgment of the court below by writ of error but not on appeal.

Jurisdiction of defendant in error has been conferred by his appearance.

Pursuant to Mills’ Ann. Code, sec. 388a, the appeal will be dismissed, the clerk will be ordered to enter the action as pending on writ of error. Orders so providing are therefore entered.

Authority for this action is found in D. & R. G. R. R. Co. v. Peterson, 30 Colo. 77; Taylor v. Colorado Iron Works, 33 Colo. 179, 80 Pac. 129; Bowling v. Chambers, 20 Colo. App. 113, 77 Pac. 16.

Error is assigned upon the overruling of the demurrer to the second and third defenses.

As to the second defense, stripped of inconsistent and contradictory allegations, it is an attempted justification of the usurpation charged, based upon the May, 1904, election, the certificate of election issued by the temporary election commission to' Horan and his qualification for and entry upon the duties of the office of coroner by virtue of such election and certificate.

In People etc. v. Johnson, ante, p. 143, and other cases involving the validity of the May, 1904, election decided at the April, 1905, term of this court, it was held that the charter convention of the city and county of Denver provided for by article XX of the constitution had no power to change the time of election, term of .office and time when the term of office shall commence of county officers.

The office of coroner is a county office and therefore falls within the rule announced in the above cited cases, and for the reasons there stated the demurrer to the second defense should have been sustained.

The construction placed by this court in the Johnson case, supra, upon the powers of the charter convention to frame a charter for the city and county of Denver is supported by the rule of contemporaneous legislative exposition which has been adopted in this state.

In People v. Wright, 6 Colo. 92, this court had under consideration the construction of a statute and an amendment to the constitution adopted by the 1877 session of the legislature. It is stated, page 97:

“That such was the intention we have evidence that must be accepted as of no little weight.

“The amendment under discussion was framed and submitted to the people by the legislature by an act approved February 23, 1877. Thirteen days’ thereafter, on the 8th day of March, the same legislature enacted the statutory provisions which are claimed to be in conflict with the amendment.

‘ ‘ The legislature were the framers of the amendment, and this statute must be taken as practically a contemporaneous exposition of it. * * *

“ ‘As in regard to statutes, so in regard to constitutions, contemporaneous and legislative expositions are frequently resorted to to* remove and explain ambiguities.’ * * *

‘ ‘ ‘Great deference is due to a legislative exposition of a constitutional provision and especially when it is made almost contemporaneously with such provision and might be supposed to result from the same views of policy and modes of reasoning which prevailed among the framers of the instrument expounded.’ — Sedgwick Stat. and Const. Law, 412; People v. Green, 2 Wend. 268, 274.

“In this case the statute in question is not only a legislative exposition of the amendment, but an exposition by dhe framers of the amendment, and must, we think, be accepted as conclusive.”

The act submitting to the people article XX of the constitution was approved March 18, 1901.

March 25, 1901, an act submitting to the people amendments to sections 6, 8 and 11 of article XIV of the constitution was approved.

Section 6 of article' XIV relates to county commissioners. The amendment proposed and adopted at the general election of 1902, the election at which article XX was adopted, contained the following: “Provided, that when the population, of any county shall equal or exceed seventy thousand, the board of county commissioners may consist of five members, any three of whom shall constitute a quorum for the transaction of business. Three of said commissioners in said county shall be elected at the general election in the year nineteen hundred and four, and at the general election every four years thereafter; and the other two' of said commissioners in such county shall be elected at the general election in the year nineteen hundred and six and every four years thereafter ; and all of such commissioners shall be elected for the term of four years.”

Section, 8 of article XIV relates to county officers. The amendment proposed: “Sec. 8. 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 four, 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 assessor, and one county attorney,” etc.

Section 11 of article XIV relates to justices of the peace and constables. The amendment proposed: “Sec. 11. There shall be elected at the same time at which members of the general assembly are elected beginning with the year nineteen hundred and four, two justices of the peace and two constables in each precinct in each county, who shall hold their office for a term of two years: Provided, that in pnecincts containing fifty thousand (50,000) or more inhabitants the number of justices and constables may be increased as provided by law. The term of office of all justices of the peace that expires in January, 1904, is hereby extended to the second Tuesday in January, 1905.”

In 1901 the only county in the state which had a population equal to or exceeding 70,000 was Arapahoe, out of which the city and county of Denver was created by the adoption of article XX, and the only precincts containing 50,000 or more- inhabitants were within the county of Arapahoe, so that after the adoption of article XX the only county falling within the provisions of the amendment to section 6 was the city and county of Denver, and the only precincts containing 50,000 inhabitants were also situated within the city and county of Denver, clearly indicating that it was not the legislative intention, in adopting article XX, to thereby grant to the charter convention power to legislate with reference to the time of election, term of office and time when the term of office shall commence of county officers.

Thus we have contemporaneous legislative exposition of the framers of these two amendments which must be accepted as persuasive.

As to the third defense, it is an attempt to convert a proceeding in quo %varranto into a statutory election contest.

This conclusion cannot be avoided by the assertion that the third defense alleges that Rollins did not receive the highest number of votes and therefore was not elected, instead of alleging that Horan did receive the highest number of votes at such election and therefore was elected.

The concluding paragraphs of this defense are:

“The said defendant alleges that thé official canvass and return of votes cast at said election for the office of coroner of said city and county of Denver by said temporary election commission is false and untrue, and that the true count and canvass of all the- votes cast and returned in said city and county of Denver at said election for the office of coroner will show that the said relator, Robert P. Rollins, did not receive the highest number of said votes for said office and was therefore not elected under the constitution and laws of the state of Colorado to said office of coroner of said city and county.

“And said defendant further alleges that if it be true- that said election of May 17,1904, was not a valid and lawful election for the office of coroner of said city and county, then the said defendant is coroner of said city and county of Denver by virtue of the twentieth amendment to the constitution, and the said Robert P. Rollins, not having received the highest number of votes cast at said November election, and therefore not. being elected at said election to the office of coroner of said city and county, and there being no' successor to said defendant as coroner duly elected as provided in said twentieth amendment to the constitution, this defendant holds over and is entitled to hold over and retain possession of said office until his successor is duly elected, as provided in said twentieth amendment to the constitution.

“That there was grave error to the prejudice of this defendant in the counting of said votes at said November election, and the certifying of the same and the abstract thereof by the said temporary election commission, and the defendant demands the opening thereof and a recount thereof.”

The grave error complained of in the last paragraph of this defense is the order of this court entered January 7, 1905, in the case of People v. Tool, whereby it was ordered that the returns from ten precincts be excluded from the canvass of votes cast at said election.

In People v. Londoner, 13 Colo. 303, it was held that proceedings in quo warranto, such as this is, could not be converted into a statutory election contest.

The demurrer to the third defense should have been sustained.

The only issues of fact presented by the first defense were the execution, approval and filing of the official bond of Eollins, and the taking, subscribing and filing of the oath of office by him.

The evidence introduced by Eollins sustains in his behalf the issues presented.

There was no evidence to the contrary.

The judgment should have been for plaintiff in error and relator, Eollins.

For the reasons stated, the judgment rendered by the court below will be reversed, set aside and for naught held, and judgment rendered and entered in this court in favor of plaintiff in error, Robert P. Rollins, and against defendant in error, William P. Horan, as prayed in the amended complaint, except as to costs.

Reversed.

Decision en banc.

Mr. Justice Steele and Mr. Justice Gunter dissent.