Benson v. People ex rel. McClelland

Citation50 P. 212, 10 Colo.App. 175
Case DateSeptember 13, 1897
CourtCourt of Appeals of Colorado

50 P. 212

10 Colo.App. 175

BENSON
v.
PEOPLE ex rel. McCLELLAND.

Court of Appeals of Colorado

September 13, 1897


Error to district court, Larimer county.

Proceeding by the people, on the relation of Joseph McClelland, against Aaron Benson, to try title to office. From a judgment ousting respondent and awarding the office to relator, the former brings error. Reversed in part.

[10 Colo.App. 176] James W. McCreery and John T. Jacobs, for plaintiff in error.

Robinson & Love, for defendant in error.

THOMSON, P.J.

On the 16th day of February, 1893, B.S. La Grange was a duly appointed, qualified, and acting member of the state board of agriculture. On that day his excellency Davis H. Waite, governor of the state of Colorado, addressed a communication to Mr. La Grange, which, after reciting certain proceedings with which Mr. La Grange was connected, in relation to the location and leasing of agricultural college lands, concluded as follows: [10 Colo.App. 177] "As at the time those lands were selected you were, and still are, a member of the state board of agriculture, and as by your wrongful act the Agricultural College fund has been deprived of a large revenue that otherwise would have accrued to the benefit of said college, you are hereby removed from your position as member of the state board of agriculture, for malfeasance in office. I am, my dear sir, very respectfully, your obedient servant, Davis H. Waite, Governor of Colorado." No charges had been preferred against La Grange, and the action was taken without a hearing, and without any previous notice to him. On the 3d day of April, 1893, the governor, by and with the consent of the senate, on the theory that Mr. La Grange had been lawfully removed, appointed the relator, Joseph S. McClelland, to fill the vacancy occasioned by the removal. After the action of the governor in attempting to remove him, Mr. La Grange ceased to exercise the duties of his office, and the relator acted as a member of the board of agriculture until the 30th day of July, 1896. On the 24th day of September, 1895, Mr. La Grange died; and on the 30th day of July, 1896, a portion of the members of the board of agriculture, present at a meeting called for the purpose, elected the respondent, Aaron Benson, a member of the board, to fill the vacancy caused by the death of Mr. La Grange. The respondent thereupon entered into the office, to the exclusion of the relator, and has since been performing its duties and enjoying its privileges and emoluments. This action was brought in the name of the people to try the title to the office. The trial resulted in a judgment ousting the respondent and awarding the office to the relator, from which the respondent has prosecuted error to this court.

The first question for consideration goes to the validity of [10 Colo.App. 178] the appointment of the relator, and therefore, also, necessarily involves the legality of the removal of La Grange. If the action of the governor in assuming to remove La Grange was unauthorized, there was, in law, no removal, and consequently no vacancy to fill, and the appointment of the relator to fill a vacancy which did not exist was nugatory. The act establishing the state board of agriculture, and defining its duties, contains the following provisions: [50 P. 213] "Section...

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9 practice notes
  • State ex Inf. McKittrick v. Williams, No. 36718.
    • United States
    • United States State Supreme Court of Missouri
    • November 9, 1940
    ...and not a limitation on the powers of the Legislature to provide for his removal. Bryan v. Landis, 106 Fla. 19; Benson v. People, 10 Colo. App. 175; 22 R.C.L., sec. 268, p. 563; State ex rel. Henson v. Sheppard, 192 Mo. 506; Sec. 7, Art. XIV, Mo. Const.; State ex inf. v. Brunk, 34 S.W. (2d)......
  • Bynum v. Strain, Case Number: 14570
    • United States
    • Supreme Court of Oklahoma
    • September 14, 1923
    ...4 N.M. 93, 12 P. 879; State v. Grant (Wyo.) 14 Wyo. 60, 82 P. 2; State v. City of St. Louis (Mo.) 1 S.W. 757; Benson v. People (Colo.) 10 Colo. App. 175, 50 P. 212; Biggs v. McBride (Ore.) 17 Ore. 640, 21 P. 878; Hagerty v. Shedd (N. H.) 75 N.H. 393, 74 A. 1055; State v. Hewitt, 3 S.D. 187,......
  • Hagerty v. Shedd
    • United States
    • Supreme Court of New Hampshire
    • December 7, 1909
    ...v. State, 102 Tenn. 509, 53 S. W. 134, 46 L. R. A. 567; State v. Smith, 35 Neb. 13, 52 N. W. 700, 16 L. R. A. 791; Benson v. People, 10 Colo. App. 175, 50 Pac. 212; State v. Hewitt, 3 S. D. 187, 52 N. W. 875, 16 L. R, A. 413, 44 Am. St. Rep. 788; Biggs v. McBride, 17 Or. 640, 21 Pac. 878, 5......
  • People ex rel. Walker v. Capp, 8803.
    • United States
    • Colorado Supreme Court of Colorado
    • May 1, 1916
    ...for, and under the decision of the appellate courts of this state,--People v. Osborne, 7 Colo. 605, 4 P. 1074; Benson v. People, 10 Colo.App. 175, 50 P. 212; Brown v. People, 11 Colo. 109, 17 P. 104; Trimble v. People, 19 Colo. 187, 34 P. 981, 41 Am.St.Rep. 236,--the statute which provides ......
  • Request a trial to view additional results
9 cases
  • State ex Inf. McKittrick v. Williams, No. 36718.
    • United States
    • United States State Supreme Court of Missouri
    • November 9, 1940
    ...and not a limitation on the powers of the Legislature to provide for his removal. Bryan v. Landis, 106 Fla. 19; Benson v. People, 10 Colo. App. 175; 22 R.C.L., sec. 268, p. 563; State ex rel. Henson v. Sheppard, 192 Mo. 506; Sec. 7, Art. XIV, Mo. Const.; State ex inf. v. Brunk, 34 S.W. (2d)......
  • Bynum v. Strain, Case Number: 14570
    • United States
    • Supreme Court of Oklahoma
    • September 14, 1923
    ...4 N.M. 93, 12 P. 879; State v. Grant (Wyo.) 14 Wyo. 60, 82 P. 2; State v. City of St. Louis (Mo.) 1 S.W. 757; Benson v. People (Colo.) 10 Colo. App. 175, 50 P. 212; Biggs v. McBride (Ore.) 17 Ore. 640, 21 P. 878; Hagerty v. Shedd (N. H.) 75 N.H. 393, 74 A. 1055; State v. Hewitt, 3 S.D. 187,......
  • Hagerty v. Shedd
    • United States
    • Supreme Court of New Hampshire
    • December 7, 1909
    ...v. State, 102 Tenn. 509, 53 S. W. 134, 46 L. R. A. 567; State v. Smith, 35 Neb. 13, 52 N. W. 700, 16 L. R. A. 791; Benson v. People, 10 Colo. App. 175, 50 Pac. 212; State v. Hewitt, 3 S. D. 187, 52 N. W. 875, 16 L. R, A. 413, 44 Am. St. Rep. 788; Biggs v. McBride, 17 Or. 640, 21 Pac. 878, 5......
  • People ex rel. Walker v. Capp, 8803.
    • United States
    • Colorado Supreme Court of Colorado
    • May 1, 1916
    ...for, and under the decision of the appellate courts of this state,--People v. Osborne, 7 Colo. 605, 4 P. 1074; Benson v. People, 10 Colo.App. 175, 50 P. 212; Brown v. People, 11 Colo. 109, 17 P. 104; Trimble v. People, 19 Colo. 187, 34 P. 981, 41 Am.St.Rep. 236,--the statute which provides ......
  • Request a trial to view additional results

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