Board of Aldermen of Denver v. Darrow

• Decision Date: 13 November 1889
• Citation: 22 P. 784,13 Colo. 460
• Parties: BOARD OF ALDERMEN OF DENVER et al. v. DARROW.
• Court: Colorado Supreme Court

22 P. 784

13 Colo. 460

BOARD OF ALDERMEN OF DENVER et al. v. DARROW.

Supreme Court of Colorado

November 13, 1889

Commissioners' decision. Appeal from superior court of Denver.

This was a proceeding, by certiorari, to review the action of the board of aldermen of the city of Denver in removing the appellee from the position of alderman and president of the board of aldermen of the city of Denver. It is averred by the petition that the appellee was on the 7th day of April, 1885, at an election held within the city of Denver, pursuant to law, duly elected a member of the board of aldermen of said city, in and for the Fifth ward, for the term of two years next ensuing. That on the 9th of April 1885, upon a canvass of the votes cast at the said election in pursuance of the statute of the state of Colorado, he was declared to have received a majority of all the votes cast in said Fifth ward for alderman of said ward, and duly elected as such alderman. That a certificate, in due form of law, was issued to him; and that on the 14th day of April, 1885, he duly qualified as such alderman, and thereafter entered upon the discharge of the duties of such office. That on the 14th day of April, 1885, he was duly elected president of the said board of aldermen, and duly inducted into the office of president of said board. That he continued to sit in said board, as a member thereof, and to preside over the same, as president thereof, until the 20th day of November, 1885. That on the 20th day of November, 1885, the following resolution was introduced, and passed by a vote of five ayes against four nays: 'Whereas, it is provided by article 2 of the city charter of the city of Denver that members of the city council shall be possessed of certain definite qualifications, in order to make them eligible to hold the office of either a supervisor or alderman of the said city among which said qualifications is that of having been for at least one year a tax-payer in the city of Denver; and whereas, the supreme court of this state has declared the said provision constitutional and valid; and, whereas, the said supreme court has declared that the power to pass upon such question of eligibility is exclusively vested in the board of aldermen of the city of Denver, so far as the members of its body are concerned; and, whereas, it has been confessed by one George G. Darrow, an acting member of the board of aldermen of this city, that he is not eligible to the office aforesaid, or as a member of the city council aforesaid, in consequence of the provision of law as above set forth, namely, that he, the said George G. Darrow, was not a tax-paying citizen for at least one year, in the city of Denver, prior to his taking his seat in said body; and, whereas, the rights and interests of the people whom we represent ought not to be jeopardized and set at naught by continuing and recognizing in office a man who has already, under the facts and the law, no right to such office; and, whereas, we are under the obligation of a solemn oath to obey the law: therefore, be it resolved by the board of aldermen of the city of Denver that the said acting member of the board of aldermen, namely, George G. Darrow, acting in said body as alderman of the Fifth ward of the said city of Denver to the said city council, and now acting as presiding officer of this body, is ineligible to hold the said office, or to perform any of the duties or functions whatsoever pertaining or belonging to said office, or to have or receive any of the emoluments or remunerations arising therefrom, or belonging thereto, by reason of his said liability and incapacity to hold the same; and be it resolved that the said George G. Darrow be declared ineligible and incapable to hold the office of alderman of the Fifth ward, as aforesaid, to the said city council, as aforesaid, and as a member of this body, and that a vacancy be declared to exist in the office of alderman of the Fifth ward of the city of Denver to the said city council; and be it further resolved that the city clerk shall, as soon as practicable, deliver to the mayor of the city a certified copy of these resolutions, informing him of the vacancy that exists in the said office of alderman from the Fifth ward; and that he be requested to call a special election in the said ward, according to law, for a day certain, to be by him fixed, for the purpose of holding an election in the said Fifth ward to fill the vacancy hereby created.' That prior to the passage of this resolution no proceedings of any sort had ever been, or were, instituted by said board of aldermen against petitioner to oust him from the office of alderman; that he had no notice whatever that said resolution was to be introduced at any time before the same was introduced. That he petitioned the board to afford him a hearing upon the matters alleged in the resolution, and to give him time to produce proof of his qualifications to hold and exercise the office. That he was well able and willing to produce such proof, if afforded an opportunity. That he was refused a hearing on the matters charged and set forth in the resolution, and that at the time he possessed and still possesses the qualifications prescribed by law to qualify and enable him to have, hold, and enjoy the office of alderman. He, as president of the said board, declared that the resolution had not legally passed, because there had been cast therefor but five of the votes of the nine aldermen constituting said board, when, in law, to remove him from his position as alderman aforesaid, two-thirds of the votes of all the aldermen constituting said board were required. That he refused to vacate his seat as president of said board, and to abandon his office as alderman, but, nevertheless, was forcibly compelled to vacate his seat, and forcibly expelled from the council chamber. To this petition a demurrer was interposed. For misjoinder of parties defendant, to the jurisdiction of the court; that the complaint does not state facts sufficient to constitute a cause of action; that the causes of action have been improperly united; that the complaint is ambiguous, unintelligible, and uncertain. The demurrer was overruled, and appeal prayed and allowed.

Isham White, for appellants.

Decker & Yonby, for appellee.

RICHMOND C., ( after stating the facts as above.)

The only question presented for our consideration by either party is-- First, the jurisdiction of the court; and, second, the legality of the action in ousting appellee out of his position as president of the board of aldermen, and amoving him from the office of alderman.

It is contended by appellants that appellee has mistaken his remedy in the prosecution of the writ of certiorari; that he should have proceeded by quo warranto against his successor in office. If title of one in possession of an office was to be tried, it is conceded quo warranto would be the appropriate remedy. But the relator in this case, being in possession of the office, seeks only a review of the proceedings taken by the board of aldermen which disturb him in the enjoyment of it. This can only be done by certiorari. Bradshaw v. City Council of Camden, 39 N. J. Law, 416.

The further contention of appellants is that by statute the board of aldermen are made the sole judges of the qualifications of its members, and that any action they may take in this particular is not a subject of review by the court. In other words, that they can proceed at any time to make or unmake aldermen, without their action being subject to review. 'The unquestionable weight of authority in this country is, if an appeal be not given, or some specific mode of review provided, that the superior common-law courts will, on certiorari, examine the proceedings of municipal corporations, even although there be no statute...