Benson v. People ex rel. McClelland

• Decision Date: 13 September 1897
• Citation: 50 P. 212,10 Colo.App. 175
• Parties: BENSON v. PEOPLE ex rel. McCLELLAND.
• Court: Colorado Court of Appeals

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.

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: "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 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: "Section 1. That a board is hereby constituted and established which shall be known by the name and style of 'The State Board of Agriculture.' It shall consist of eight members besides the governor of the state and the president of the State Agriculture College, who shall be ex officio members of the board. The governor, by and with the consent of the senate, on or before the third Wednesday of January of each biennial session of the general assembly, shall appoint two members of the board to fill the vacancies that shall next occur, which vacancies shall be so filled that at least one-half of the appointed members of the board shall be practical farmers.

"Sec. 2. The state board of agriculture shall be a body corporate, capable in law of suing and being sued; of taking, holding and selling personal property and real estate; of contracting and being contracted with; of having and using a corporate seal; and of causing to be done all things necessary to carry out the provisions of this act.

"Sec. 3. Any vacancy in the said board, caused by death, resignation or removal from the state, may be filled by a majority of the members. A majority shall be a quorum for the transaction of business."

Gen.St.1883, p. 124.

The act contains no provision for the removal in any manner, or by any...