Board of Com'rs of Pueblo County v. Smith

• Decision Date: 01 June 1896
• Court: Colorado Supreme Court
• Parties: BOARD OF COM'RS OF PUEBLO COUNTY v. SMITH.

45 P. 357

22 Colo. 534

BOARD OF COM'RS OF PUEBLO COUNTY v. SMITH.

Supreme Court of Colorado

June 1, 1896

Appeal from district court, Pueblo county.

Mandamus by J. F. Smith against the board of county commissioners of Pueblo county. Judgment for plaintiff, and defendants appeal. Affirmed.

This is a mandamus proceeding submitted upon an agreed state of facts, from which it appears that in the year 1893 the board of county commissioners of Pueblo county, being of opinion that the needs of precinct No. 1 in that county required an additional justice of the peace, increased the number of justices by the appointment of an additional justice. August 21, 1895, this order was rescinded, and a resolution entered of record declaring the number of justices reduced to two. At the regular election in 1895 one Carey received the highest number of votes, and appellee the next highest. Certificates of election having been issued to both, appellee executed and tendered his bond, claiming to be entitled to act as a third justice. The board of county commissioners (this being the body charged with the duty of passing upon the sufficiency of bonds of justices elect) disapproved appellee's bond, for the sole reason that, in the judgment of the board, there was no office for him to fill. Thereupon appellee instituted this action to compel the board to approve the bond. The district court decided in favor of appellee, and awarded him the writ as prayed for. The case is brought here by the board by appeal. The questions submitted to the court for its decision are: (1) Is the act of April 13, 1891 (Sess. Laws 1891, p 116), providing for increasing the number of justices by the board of county commissioners in precincts of more than 20,000 inhabitants, if, in the judgment of the board, the needs of the precinct require such increase, constitutional? (2) If the said act be constitutional, did the defendant board have authority to reduce the number of justices from three to two, after action had been taken by it increasing the number? The act of 1891, referred to, reads as follows:

'Section 1. The board of county commissioners of any county in this state, having within their respective counties a justice precinct of more than twenty thousand inhabitants, may, at any regular meeting of the board, appoint one or more justices of the peace, and one or more constables, as the needs of the precinct may require, and such appointees shall hold office until their successors are elected and qualified provided, that, in addition to the two justices of the peace and the two constables now provided by law for each justice precinct, such board of county commissioners shall not appoint more than one such justice and constable for each twenty thousand inhabitants in such precinct.

'Sec 2. The boards of county commissioners shall unite two or more contiguous justice precincts where parts of the two or more precincts lie within the corporate limits of a town or city, and may add thereto such adjoining precincts or parts thereof, as the said board of county commissioners may deem best. The powers, duties and jurisdiction of the officers of precincts thus united shall be equal in every respect: provided, the term of office of no such justice or constable shall be construed to be abridged or extended thereby.

'Sec. 3. It shall not be lawful hereafter to divide an incorporated town or city into two or more justice precincts.'

The constitutional provisions bearing upon the questions presented are as follows:

'The general assembly shall not pass local or special laws in any of the following enumerated cases, that is to say: * * * Fifth. Regulating county or township affairs. * * * Twenty-Fourth. In all other cases, where a general law can be made applicable, no special law shall be enacted.' Article 5, § 25.

'The judicial power of the state as to matters of law and equity, except as in the constitution otherwise provided, shall be vested in a supreme court, district courts, county courts, justices of the peace, and such other courts as may be provided by law.' Article 6, § 1.

'Justices of the peace shall have such jurisdiction as may be conferred by law; but they shall not have jurisdiction of any case wherein the value of the property or the amount in controversy exceeds the sum of three hundred dollars, nor where the boundaries or title to real property shall be called in question.' Article 6, § 25.

'All laws relating to courts shall be general and of uniform operation throughout the state; and the organization, jurisdiction, powers, proceedings and practice of all the courts of the same class or grade, so far as regulated by law, and the force and effect of the proceedings, judgments and decreeds of such courts severally, shall be uniform.' Article 6, § 28.

E. C. Glenn and Hartman & Glenn, for appellants.

Charles E. Gast, for appellee.

HAYT, C.J. (after stating the facts).

Is the act of 1891 in violation of section 28 of article 6 of the state constitution? The first section of article 6 of the state constitution provides that 'the judicial power of the state, * * * shall be vested in * * * justices of the peace. * * *' Section 25 provides that 'justices of the peace shall have such jurisdiction as may be conferred by law, except,' etc. By section 11 of article 14 the election of such officers is provided for, and the term of office fixed at two years. This section fixes the number of justices at two in each precinct, with a proviso that in precincts having 5,000 or more inhabitants the number of justices may be increased as provided by law. Without doubt, the two justices provided for each precinct by the constitution are constitutional officers; and, when the number of justices is increased in any precinct, the new justices are placed on an equal footing with those whose offices are definitely fixed by the organic law, and all are constitutional officers. The act of 1891 does not attempt to create the office of justice of the peace, or provide for the creation of such office. It simply authorizes an additional justice in precincts having a population of over 20,000 inhabitants, where the needs of the precinct may require it; leaving the organization, jurisdiction, powers, proceedings, and practice in all justices' courts as at the time fixed by general laws, or as shall be provided by such laws in the future. The uniformity required by the constitution in this regard is therefore respected. The constitution creates the office of justice of the peace, and provides that there shall be not less than two justices in each precinct. It does not designate the number of precincts into which the county shall be divided. This is not mentioned in that instrument. But from the earliest period of our state government the boards of county commissioners of the several counties have been vested by statute with the power to increase or diminish the number of precincts as in their judgment the public good should, from time to time, require. Mills' Ann. St. § 929. This act has been in force, except as modified by the statute of 1891, for nearly 20 years, and its constitutionality has never been questioned in the courts; and, if now questioned, we should labor long and earnestly to uphold the act, being impelled thereto by the maxim which requires the unconstitutionality of an act to be shown beyond all reasonable doubt before the act can be overthrown, and for the further reason that courts have been brought into existence, and have discharged their functions for many years, under this act, and its overthrow at this time would be attended with such disastrous results as might well cause any court to pause and hesitate before reaching a conclusion adverse to the act. Moreover, we know of no provision of the constitution with which the act conflicts. The justices' precincts, under the constitution, take the place of township organizations as they existed in territorial times. For each township there were two justices provided, and power given the boards of county commissioners in their respective counties to set off, organize, establish, and change the boundaries of the townships in their discretion. Rev. St. 1868, pp. 169-188. The framers of our fundamental law were familiar with these provisions, and, if they had wished to take from the legislature this power, we have no doubt that they would have given expression to such intent in language that could not have been misunderstood. At the first legislative session under the new constitution the act of 1877 was passed. In support of a construction of the constitution which permits the increase and decrease of justices' precincts by the boards of county commissioners in their respective counties, we therefore have a contemporaneous declaration of a legislature composed in part of the same men who framed the constitution. We have dwelt upon the act of 1877, not because its constitutionality has been directly attacked in this case, but for the reason that the case of State v. Adams (Tenn.) 18 S.W. 393, hereinafter specifically referred to, is strongly relied upon by appellants, and, as we shall presently show, this case, if followed, would overthrow the statute of 1877 as well as the act of 1891. The legislature is not given power to create the office of justice of the peace, but when a new precinct is established, the officers spring into existence by virtue of the constitution. And as said in this case by Judge Dixon of the district court: 'And what difference in principle can there be between a case where the offices are called forth by the creation of a new precinct, and a case where the office is called forth by a resolution reciting the need of an additional officer is a given precinct? In both cases the moving...