Carpenter v. People ex rel. Tilford

• Decision Date: 06 February 1885
• Citation: 8 Colo. 116,5 P. 828
• Parties: CARPENTER v. PEOPLE, etc., ex rel. TILFORD.
• Court: Colorado Supreme Court

5 P. 828

8 Colo. 116

CARPENTER v. PEOPLE, etc., ex rel. TILFORD.

Supreme Court of Colorado

February 6, 1885

Appeal from district court, Chaffee county.

George H. Gray and Mason B Carpenter, pro se, for appellant.

R H. Gilmore, for appellee.

BECK C.J.

The legislature, by a special act, approved February 13, 1883 and which went into effect on that day, entitled 'An act to reduce the law incorporating the city of Denver and the several acts amendatory thereof into one act, and to revise and amend the same,' among other things, created the office of city attorney, and provided that an election should be held in each ward of the city on the first Tuesday of April, 1883, for the election of a mayor, treasurer, auditor, city attorney, and other city officers. The act further provided that the officers to be elected should hold their respective offices for two years, and until their successors should be elected and qualified; and that every two years thereafter an election should be helf for the election of certain officers named, including city attorney. It also specifies that the officers to be elected should qualify before entering upon the duties of their respective offices, and provided that if any officer should fail to qualify within 20 days of his election, the office to which he was elected should be deemed vacant. An election was held at the time designated, and the relator, Tilford, was elected thereat to the office of city attorney. He qualified in the manner and within the time prescribed, and then made demand upon the respondent, Carpenter, who was in possession and exercising the duties of said office, for possession thereof. This demand was refused, the respondent claiming to hold said office by virtue of an election by the city council of said city, held on the first day of March, 1883, and claiming that he was entitled to hold said office for and until the sixteenth day of November then next ensuing, by virtue of the provisions of a city ordinance adopted on the fifth day of April of said year.

Respondent also denied the validity of the law under which the relator claims title to said office, on the ground that it is a local or special law, and for that reason void under the provisions of the state constitution. In the case of Brown v. City of Denver, 7 Colo. 305, S.C. 3 PAC. REF. 455, we held, as against a similar constitutional objection, that the special act entitled 'An act to reduce the law incorporating the city of Denver, and the several acts amendatory thereof, into one act, and to revise and amend the same,' approved April 6, 1877, was constitutional. The constitutional question now presented is substantially the same, and invokes a construction of the same constitutional provisions, although arising under a legislative act of a later date. The provisions of the constitution bearing upon this question are as follows:

Sec. 25, art. 5. 'The general assembly shall not pass local or special laws in any of the following enumerated cases; that is to say, [then follows a long list of cases, none of them relating to the granting or amending of city charters, after which the section concludes thus:] granting to any corporation, association, or individual the right to lay down railroad tracks; granting to any corporation, association, or individual any special or exclusive privileges, immunity, or franchise whatever. In all other cases where a general law can be made applicable, no special law shall be enacted.' Sec. 13, art. 14. 'The general assembly shall provide, by general laws, for the organization and classification of cities and towns. The number of such classes shall not exceed four, and the powers of each class shall be defined by general laws, so that all municipal corporations of the same class shall possess the same powers, and be subject to the same restrictions.'

Sec. 14, art. 14. 'The general assembly shall also make provision, by general law, whereby any city, town, or village, incorporated by any special or local law, may elect to become subject to and be governed by the general law relating to said corporation.'

Sec. 2, art. 15. 'No charter of incorporation shall be granted, extended, changed, or amended by special law, except for such municipal, charitable, educational, penal, or reformatory corporations as are or may be under the control of the state; but the general assembly shall provide, by general laws, for the organization of corporations hereafter to be created.'

Our conclusion in the former case is expressed in the following language:

'Whether a special city charter can be amended by a general law, applicable to the whole state, so as to meet the necessities of a particular case, may be a close question, or such amendment may, perhaps, be impossible. Certainly, the first body to pass upon the question is the legislature. If a general law could not, for any reason, be made applicable to the case, then a special law is authorized by the constitution itself, and, with the authorities cited, we are disposed to hold that the decision of the question is for the legislature, and not for the courts.'

The provisions of the Missouri constitution of 1865, sec. 27, art. 4, are very similar to our section 25, art. 5. It enumerates a long list of cases concerning which the legislature is prohibited from passing special laws, and concludes thus:

'The general assembly shall pass no special law for any case for which provision can be made by a general law; but shall pass general laws providing, so far as it may deem necessary, for the cases enumerated in this section, and for all other cases where a general law can be made applicable.'

Under this section the courts of that state have held that, as to legislation not falling within the prohibitory acts, it is for the legislature to decide whether a general law can be made applicable or not; that the constitutional rule is laid down as a guide for the law-making power, and it is to judge of the necessity of each case as it arises. State v. County Court, 50 Mo. 317; Same v. Same, 51 Mo. 82; Hall v. Bray, Id. 288.

The constitution of the state of Kansas (section 17, art. 2) contains the following provision:

'All laws of a general nature shall have a uniform operation throughout the state, and in all cases where a general law can be made applicable no special law shall be enacted.'

This section was construed by the supreme court of Kansas in State v. Hitchcock, 1 Kan. 178, to leave a discretion to the legislature, and to impose upon that body the responsibility of determining whether or not, in a given case, the purpose designed could be expediently accomplished by a general law. This decision was affirmed in Beach v. Leahy, 11 Kan. 23, and in Francis v. Atchison, T. & S. F.

R. Co. 19 Kan. 303. Under another provision of the Kansas constitution, however, the case now before us would be a prohibited case in that state; section 1, art. 12, providing that 'the legislature shall pass no special act conferring corporate powers.' The constitution of Indiana, by section 22 of article 4, prohibits the legislature from passing local or special laws, in a long list of enumerated cases. Section 23 of the same article provides as follows:

'In all the enumerated cases in the preceding section, and in all other cases where a general law can be made applicable, all laws shall be general and of uniform operation throughout the state.'

The effect of these provisions was considered by the supreme court of Indiana in Thomas v. Board Com'rs, 5 Ind. 4, wherein it was held to be a judicial question whether a general law could be made applicable. The reasoning in favor of this construction was that if the courts could not review the judgment of the legislature upon this question, the twenty-third section would have no validity; that it would impose no restriction, nor confer any power, upon that body which it would not possess in the absence of such a provision. This decision was overruled in Gentile v. State, 29 Ind. 409, wherein it is said: 'The reasoning upon which it is based is regarded as unsound, and does not, therefore, support the conclusion reached.' The court further say, substantially, that the object of the twenty-third section was not to confer any power on the legislature, but was intended as a restriction, building upon the conscience of each member, under his official oath, which it is not to be presumed he would willfully disregard in the enactment of laws; that the question whether a general law can be made applicable is peculiarly addressed to the legislative judgment, and when that body decides that it cannot, the reasons, although satisfactory to it, may not appear on the face the of the law, and may not suggest themselves to the mind of a court, and thus the legislature and courts would be liable to be brought into frequent conflict, to no beneficial purpose, if it were held to be a judicial question. The same rule has been repeatedly announced in that state. See State v. Tucker, 46 Ind. 358.

The following cases are cited as laying down a contrary doctrine: Thomas v. Board Com'rs, 5 Ind. 4. This case was subsequently overruled, as above noted, by Gentile v. State, 29 Ind. 409, the reasoning therein being declared unsound.

The decisions in the following cases-- Atchison v. Bartholow, 4 Kan. 144; Clegg v. Richardson Co. 8 Neb 178; and State v. Cincinnati, 23 Ohio St. 445--are all based on prohibitory clauses existing in the constitutions of the several states mentioned, providing that the legislature should pass no special act conferring corporate powers. These cases may therefore be classed with Ex parte Stout, 5 Colo. 509, also cited; all of which held that special laws in cases clearly prohibited by the...