City and County of Denver v. Rinker, s. 19673
| Decision Date | 27 November 1961 |
| Docket Number | Nos. 19673,19674,s. 19673 |
| Citation | 148 Colo. 441,366 P.2d 548 |
| Parties | CITY AND COUNTY OF DENVER, a body politic, and John M. Schooley, Ex-Officio Sheriff of the City and County of Denver, Plaintiffs in Error, v. Earl R. RINKER et al., Defendants in Error (two cases). |
| Court | Colorado Supreme Court |
Donald E. Kelley, City Atty., James H. Snyder, Asst. City Atty., Denver, for plaintiffs in error.
Charles D. Bromley, Denver, for defendant in error Career Service Board.
Vivian, Sherman, Kinney, Sterling & Keating, Denver, for defendant in error, John V. Staugas.
The City and County of Denver and its Manager of Safety and Excise, John M. Schooley, brought two actions, and having suffered adverse judgments in the trial court in both are here on writ of error. Because both proceedings present the same issues, we have consolidated them for the purpose of this opinion.
In the first case, Denver and Schooley brought an action of a declaratory judgment against members of the Career Service Board of the City and County of Denver and George Hays, a deputy sheriff of the City and County of Denver as a member of a class similarly situated.
In the second case, Denver and Schooley brought a proceeding in the nature of certiorari under Rule 106, R.C.P.Colo. against the members of the Career Service Board and John B. Staugas, a jailer of the county jail in the City and County of Denver, challenging the jurisdiction of the Career Service Board to grant a hearing to Staugas upon a demotion order issued by Schooley. The proceeding leading to the demotion order was initiated by Schooley in accordance with Career Service rules upon forms furnished by the Career Service Authority for use by 'agencies under Career Service, City and County of Denver.'
Denver and Schooley contend that deputy sheriffs and jailers are not subject to career service in the City and County of Denver; and that their appointment, promotion, demotion, suspension and discharge are for the uncontrolled discretion of the Manager of Safety and Excise.
The defendant's position is that this issue is determined by the specific language contained in the Career Service Amendment to the the Charter of the City and County of Denver adopted by vote of the people of Denver.
Denver and Schooley answer this argument with the contention that if the language of the Charter Amendment in question places deputy sheriffs and jailers under Career Service, then the amendment is unconstitutional.
Does the Career Service Amendment to the Charter of the City and County of Denver encompass within its scope the positions of deputy sheriffs and jailers? The question is answered in the affirmative.
In 1954 the people of Denver by popular vote passed the Career Service Amendment to the Charter of the City and County of Denver. Section 1 of this amendment provided:
'The Career Service shall comprise all of the employees of the City and County of Denver and their positions, except
'(1) Officers of the City and County of Denver including the classified service of the fire and police * * *' (emphasis supplied).
Section 1, sub-paragraphs (2) to (9), specify in detail various other positions and employees excepted from the Career Service.
Section 9 of the amendment provides as follows:
Denver and Schooley argue that sheriffs' deputies and jail guards are traditionally regarded as public officials and not as employees and therefore are exempted under the terms of the Career Service Amendment itself. They cite many cases from other jurisdictions stating this proposition. The short and complete answer to this argument is that the people of Denver by Charter Amendment have specifically determined who are 'officers' and who are 'employees.' This they had the power to do. McNichols, Auditor v. People ex rel. Cook, 95 Colo. 235, 35 P.2d 863.
Since the people of Denver have spoken in their Charter, it is not pertinent to the issue here to determine whether sheriffs and jailers were officers in the days of the Sheriff of Nottingham or at common law or in any other state. The question here is are they 'officers' or 'employees' under the Charter of Denver.
A Charter amendment passed in 1916, which is now Section 315 of the Charter, provides:
The salaries of deputy sheriffs and jailers are not set by the charter and they are therefore by charter definition, employees. McNichols v. People ex rel. Cook, supra. The 1954 Career Service Amendment to the Charter provided that all employees except officers and others specifically exempted were to be under the Career Service. Deputy sheriffs and jailers were not specifically exempted. The plain purpose of the amendment was to institute career service for all employees as defined in the Charter except those specifically exempted. This purpose was recognized and followed by all Managers of Safety following its adoption, including Schooley himself, as shown by the personnel action which he took in the Staugas matter.
Denver and Schooley contend, however, that even if deputy sheriffs and jailers are employees under the Charter they are not covered by the Career Service Amendment because two provisions of the Denver Charter enacted before the Career Service Amendment constitute an exception to the Career Service Amendment. Section 127 of the Charter provides that the exofficio sheriff shall exercise the powers given to the sheriff by the Constitution or by general laws of the state. Section 313 of the Charter provides that whenever the Constitution or the general laws of the state permit the appointment of deputies or other subordinates by any county officer, the charter officer upon whom the powers and duties of such county officer have been conferred may appoint such deputy or deputies. C.R.S. '53, 35-5-5 provides that sheriffs may appoint deputies and revoke the appointment at their pleasure.
Denver contends that these provisions constitute special statutes and therefore must be considered as an exception to the general Career Service Amendment.
It is true, as Denver contends, that for general legislation to work a repeal of an existing special provision the intent to do so must be clear and unmistakable. El Paso County v. Shelden, 59 Colo. 499, 149 P. 616. It is also true that there is a presumption that all laws are passed with knowledge of those already existing and that the legislative body does not intend to repeal a statute without so declaring. Harrington v. Harrington, 58 Colo. 154, 144 P. 20. Counsel contends that under this doctrine the provisions of Sections 127 and 313 constitute an exception to the Career Service Amendment. Counsel overlooks the express statement of the people that all sections of the Charter in conflict with the Career Service Amendment are repealed and that all sections of the Charter partly inconsistent with or contrary to the Career Service Amendment are amended to conform.
We must look to the intention of the people as expressed in the act itself to...
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