Central & Georgetown Road Co. v. People ex rel. Taylor

• Decision Date: 01 April 1879
• Citation: 5 Colo. 39
• Parties: THE CENTRAL AND GEORGETOWN ROAD CO. v. THE PEOPLE EX REL. TAYLOR.
• Court: Colorado Supreme Court

5 Colo. 39

THE CENTRAL AND GEORGETOWN ROAD CO. v. THE PEOPLE EX REL. TAYLOR.

Supreme Court of Colorado

April, 1879

Appeal from District Court of Clear Creek County.

THE case is stated in the opinion.

Mr WILLARD TELLER, for appellant.

Mr THOMAS MITCHELL, for appellee.

THATCHER C. J.

Under chapter twenty-five of our Code of Civil Procedure, the district attorney of the first judicial district, in the name of the people, upon the relation of Frank M. Taylor, filed a civil complaint, and caused a summons to issue to the defendants in substantial compliance with the provisions of the Code.

The first question that presents itself for our consideration, is the validity of chapter twenty-five, which concerns 'Actions for the usurpation of an office or franchise.' The title of the Code (of which this chapter is part) is 'An act providing a system of procedure in civil actions in the courts of justice of the State of Colorado.'

Our constitution provides (Sec. 20, Art. 5): 'No bill * * * shall be passed containing more than one subject, which shall be clearly expressed in its title; but if any subject shall be embraced in any act which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be so expressed.'

Omitting the important italicised words, the constitutions of the States of California and Ohio contain the same provision.

By the Supreme Courts of those States, it is held that this provision is not mandatory, and that a law passed in violation thereof would not be void. In Pierpont v Crouch, 10 Cal. 315, Mr. Justice Field, speaking for the court, says: 'The object of the constitutional provision was to secure some congruity or connection in the subjects embraced in the same statute, but as the provision is merely directory, it can only operate upon the conscience of the law maker. It creates a duty of imperfect obligation, for the infraction of which there is no remedy in the courts.' In Pim v. Nicholson, 6 Ohio St. 180, construing the same provision, the court uses this language: 'This provision being intended to operate upon bills in their progress through the General Assembly, it must be held to be directory only. It relates to bills, and not to acts. It would be most mischievous in practice, to make the validity of every law depend upon the judgment of every judicial tribunal of the State as to whether an act or a bill contained more than one subject, or whether this one subject was clearly expressed in the title of the act or bill. * * * No practical benefits could arise from such inquiries. We are therefore of the opinion that in general the only safeguard against the violation of these rules of the houses, is their regard for and their oaths to support the constitution of the State.'

The added words in the section of our constitution are quite significant, and apparently employed for the purpose of avoiding the construction placed upon the first part of the provision by the courts of California and Ohio. Perhaps there is no escaping the conclusion, that under our constitution, so much of any act as is not directly germane to the subject expressed in the title, is without force; that the provision instead of being only a rule of the General Assembly to regulate their procedure, is a mandatory declaration of an essential condition to the validity of legislative enactments. If this be its true construction, it follows that if a proceeding instituted for the purpose of remedying the usurpation or misuser of a corporate franchise, or a public office be in its nature substantially criminal, chapter XXV of the Code, is without validity. Under this chapter the proceeding is by civil complaint and summons. The criminal form of the old proceeding is superseded by a civil action. In terms chapter seventy-three of the Revised Statutes, authorizing proceedings by information in the nature of a quo warranto is repealed. Code, Sec. 477. In obedience to the universally recognized rule that a sovereignty conferring a franchise may at any time, in its own appointed way and forms, inquire into the manner in which the franchise granted is used, we entertain no doubt of the validity of chap. XXV, nor of section four hundred and forty-seven of the Code. Potter's Law of Corporations, Sec. 665.

Whatever may be the form of the action prescribed by the General Assembly, whether by information in the nature of quo warranto, or by the ancient writ of quo warranto, or by complaint under the Code in a civil action, the objects to be attained are identical, and the proceeding is, in substance, civil, instituted for the determination of purely civil rights. High Ex. Leg. Rem. Sec. 591; King v. Francis, 2 Term R. 484; Angell and Ames on Corporations, Sec. 733; Commonwealth v. Commissioners, etc. 1 Serg. & Rawle, 380; Commercial Bank, etc. v. The State of Mississippi, 4 Smedes & Marshall, 504; The People v. Utica Insurance Co. 15 Johns, 386; The People v. Cook, 8 N. Y. 70; State ex rel. Page v. Smith, 48 Vt. 282.

We therefore conclude that the proceeding under the Code was properly instituted. The complaint alleges that the Central and Georgetown Railroad Company was incorporated on the thirteenth day of October, 1864, under the provisions of the General Act of the Territory of Colorado, entitled 'An act to amend an act to enable road, ditch, manufacturing and other companies to become bodies corporate,' approved March 11th, 1864; that the said company, in execution of the powers conferred upon them by the said act, erected in the year 1864, a toll gate upon their route at Fall River, in Clear Creek county aforesaid, and applied to the county commissioners of said county to prescribe the rates of toll to be collected thereat; that the said commissioners did, in October, 1864, prescribe such rates, and the said company have ever since collected tolls at said gate, and still continue so to do; that in the month of March last past (A. D. 1878), the said company erected a toll house at a point upon their route, between the town of Georgetown, one of the termini of said road, and Fall River aforesaid, in the county aforesaid,...