DocketNumber: No. 6092
Citation Numbers: 38 Colo. 497
Judges: Campbell
Filed Date: 9/15/1906
Status: Precedential
Modified Date: 7/20/2022
delivered the. opinion of the court:
Special proceeding to contest the validity of a franchise election.
Proceeding under this constitutional grant of authority, the people of Denver, in March, 1904, adopted a charter under which the municipality is now acting. Sections 265-269 thereof relate to the particular franchises described in section 4 of article 20, and, among other provisions, they contemplate that the manner of submitting to a vote the proposition of granting or refusing applications therefor shall be by ordinance.
In pursuance of this charter authority, the city council of Denver, at the regular city election held on the 15th day of May, Í906, by appropriate ordinance, submitted to its qualified tax-paying electors the ■proposition of granting or denying to the Denver City Tramway Company a franchise consisting of a right of way over certain streets, alleys, etc., in the city of Denver, together with the right to construct, operate and maintain a system of street railways thereon; and, by another ordinance, a distinct and separate proposition of granting or denying to the Denver Gas and Electric Company a right of way over certain streets and alleys in Denver for laying pipes, erecting poles, etc., together with a right to construct, operate and maintain a gas and electric light system in the city.
The vote thereon, as canvassed, returned and certified by the designated election officers, showed
The petitions filed show on their face that they are contest proceedings pure and simple, authority for which relator claims is found in the city charter. The respondents in each proceeding promptly challenged the power of the court to hear and determine the contest, on the ground that jurisdiction of the subject-matter was lacking, and they repeatedly renewed the challenge when an appropriate opportunity was afforded. The county court declined to pass upon the objection, though the decision necessarily must depend upon an interpretation or construction of the- constitution and statutes of the state and the written charter, and wholly irrespective of the evidence on the issue of fraud, but proceeded to hear evidence upon such controverted issues of fact, and reserved for final hearing the matter of its jurisdiction. These two proceedings, and. another símil alone, were then consolidated for trial. Evidence was taken, and all the ballot boxes in the 211 election precincts opened and the ballots re-counted.
In the course of the hearing, the plaintiff in error; Williams, was subpoenaed to testify as a. witness, and, when called into the box, refused to be
Whether, and if so, in what circumstances, one subpoenaed to testify in. a cause, who is not interested in the result of the litigation, 'may, upon the ground that jurisdiction of its subject-matter is lacking, refuse to be sworn as a witness, was not mooted below, or passed upon by the trial court; neither is it raised nor argued by any of the counsel here. . The record shows that, after Williams was adjudged guilty of contempt, the court suspended proceedings, and, by stipulation of all the parties in interest, with the approval of the court, it was agreed that there should be pressed for decision in the supreme court in this writ of error only the question of the jurisdiction of the county court over the subject-matter of the contest, and, until that was determined, no further steps would he taken below. In accordance with this agreement, counsel for defendant in error, while, not conceding the asserted right of this witness, forbears to press the doubt he entertains, and unites with opposing counsel and the trial court in asking for a decision on the main question. While such request is not controlling with us, yet we are persuaded that public interests will he best conserved, and unnecessary expense avoided, by complying therewith. Therefore, without intimating an opinion one way or the other concerning the propriety of the
The contestor rests this entire proceeding on section 182 of the charter, which reads:
“All cases of contested elections shall be tried under the procedure prescribed by general law by the county court, except a contest for the office of county judge, which shall be tried as prescribed by general law, and except as otherwise provided herein. ’ ’
Two queries naturally arise: First, may a charter convention, held under article 20, make an election on a franchise proposition the subject of contest, or prescribe a procedure for determining the same? Second, has the charter convention by this section done so ?
1. Irrespective of the individual views of the members of this court concerning the scope of, and limitation upon, the powers which, under article 20, a charter convention of the city of Denver possesses, we are all agreed that the present contention of relator has been determined against him by People v. Johnson, 34 Colo. 143. So long as that case is unreversed, it is as binding on those who dissented as on those who concurred in the opinion. In the opinion of the court by Mr. Justice Maxwell, the question there presented is thus stated: £ £ Can the people of the state, by constitutional amendment, set apart any portion of the state and vest the citizens thereof with power to legislate upon matters other than those purely local and strictly municipal in their character?” To this question a negative answer was given. Tt was further said, in the course of the opinion:
“To concede that article 20 authorizes a charter convention to legislate upon any subject whatever, in contravention of any of the provisions of the
The court, after stating the result of its prior decisions upon analogous questions, thus stated its final conclusion: ‘ ‘ That the authority of the charter convention to legislate under article 20 of, the constitution is limited to matters purely local and municipal in their character.”
The contestor renews the discussion of the same questions that were ably argued by counsel and thoroughly considered both in the opinion of the court and in the dissenting opinion of Justice Steele in the Johnson case, and asks us to reconsider and set aside our conclusion, and make a new and different announcement.
Tn support of his various positions he cites, and at length comments upon, a number of cases from .Missouri and California, most, if not all, of which were considered in the Johnson case and there held, under our constitution and laws, either not applicable or not controlling. He now asserts that not a single one of them supports our decision, but, on the contrary, each and all are radically and diametrically opposed thereto. Were it important or necessary, the majority think it would not be difficult to demonstrate that, in view of the essential differences between the pertinent constitutional and statutory provisions of Colorado and those of Missouri and California, their cases could be reconciled with ours.
There remains for us merely to apply the principle of that case to this, and inquire if section 182 legislates with reference to purely local or strictly municipal matters, which are within the scope of the charter, or whether it relates to governmental, state, or county matters, which are exclusively within the purview of the general assembly. If this section falls under the former class, it is valid; if not, it is void.
The relator maintains, and, of course, must maintain, that section 182 is a piece of legislation, that.it creates a right to contest a franchise election, and invests the county court with jurisdiction to try and determine the same. ' It may be conceded that the granting of a franchise is a municipal function, but it does not follow that a judicial investigation to determine whether a franchise is properly granted as the result of an election is a municipal function, or that it is competent for the municipality to confer upon a state court jurisdiction to make such investigation. That this assumed legislation, which obviously relates to matters of a governmental and state character, is,- in view of at least three specific sections of our constitution, inhibited, is readily apparent.
Section 23 of article 6 makes of the county court a tribunal of limited jurisdiction, and, after designating certain matters of which it shall have cognizance, adds: “And such other civil and criminal jurisdiction as may be conferred by law.” Section
Such other jurisdiction as may be conferred by “law,” as that word is used in section 23, obviously means “law” which is enacted by the legislative department of the state government which the constitution has created; and “law,” found in section 28, is of the same character.
If, then, jurisdiction of county courts, other than that specifically given by the constitution itself, can be conferred on county courts, and the uniform procedure demanded by the constitution prescribed, only by laws enacted by the general assembly, it necessarily follows that the charter convention by its charter, or the city council by its ordinance, though each instrument is a law local and municipal in its nature and controlling in local matters, cannot legislate with respect to the jurisdiction and procedure of the state courts, which necessarily are matters of governmental nature and state importance, and reserved exclusively for action by the general assembly.
In section 11 of article 7 of the constitution, the duty is enjoined on the general assembly to “pass laws to secure the purity of elections, and guard against abuses of the elective franchise”; and by section 12 it is provided: “The general assembly shall, by general law, designate the courts and judges by whom the several classes of election contests, not herein provided for, shall be tried, and regulate the manner of trial, and all matters incident thereto.” If there is such a thing as an election contest of a franchise, it is conceded that it is within the purview
But contestor, while- conceding that election contests are unknown to the common law, and exist, if at all, as the result of some affirmative legislative enactment having the force and effect of a statute of the general assembly, still insists that it is competent for the charter convention, by its charter, to create not only an 'election contest, but to invest a state court with jurisdiction to try it under a procedure by it furnished, because, as he puts it, a charter is a law of equal dignity and authority with, or even superior to, a statute passed by the general assembly. With respect to purely local and municipal matters, the charter may be, and doubtless is, the paramount law, except as limited by provisions of the state or federal constitutions. But, as we have already decided, it is- confined to such local concerns, and cannot invade the field of county or state legislation at all, and, as to such matters, the general assembly is both supreme and exclusive except as limited by the constitution. While it is true that the charter is a “law,” in the sense above limited, it is not a “law” as to county or state or governmental affairs. Our
Finally, contestor says that this court is committed to the doctrine that a charter convention has the legislative power claimed, and cites a number of cases which he says so declare. These cases construed various sections of the special territorial charter of the city of Denver (under which it was operating until the present charter of 1904 was adopted), together with the various amendments thereto made at different sessions of the general assembly of the territory and state. Rogers v. The People, 9 Colo. 450, is a good example of these cases. The decisions in all of them show that they were based upon the fact that the state constitution itself saved to the municipality of Denver the rights secured by its territorial special charter, and, for that reason, all statutes fairly amendatory thereof passed by the general assembly after the adoption of the constitution were not inimical to the constitutional inhibition against special and local legislation; that, because of such saving clause, various other constitutional provisions were not applicable to that municipality. These decisions are in no sense authority for contestor’s contention.
2. There is another and equally substantial reason why the county court was without jurisdiction even if the charter could confer it. The language of section 182 is: “All cases of contested elections shall he tried under the procedure prescribed by general law by the county court.” Mark the language. It is not said that all elections held by the municipality may be contested, but “all cases of contested elections” shall be tried, etc. This language does
For both of the foregoing reasons — first, that neither the charter nor a city ordinance can confer the jurisdiction claimed; and, second, that, if it could, it has not done so — the county court was entirely without jurisdiction of this proceeding, and had not the power to hear or determine the alleged contest’. It could not, therefore, render any valid order therein except a dismissal at the costs of the relator.
I am authorized to say that Mr. Justice Steele is of opinion that the court is correct in holding that
Upon tbe other branch of tbe case, be expresses no opinion, as, in bis judgment, tbe decision in tbe Johnson case is decisive of this.
Tbe necessary conclusion is, that tbe judgment against tbe plaintiff in error was void, and should be reversed. 1Reversed.
Decision en banc, all tbe justices concurring.