City and County of Denver v. Lynch

• Decision Date: 29 December 1932
• Docket Number: 13149.
• Parties: CITY AND COUNTY OF DENVER et al. v. LYNCH et al.
• Court: Colorado Supreme Court

18 P.2d 907

92 Colo. 102

CITY AND COUNTY OF DENVER et al. v. LYNCH et al.

No. 13149.

Supreme Court of Colorado, En Banc.

December 29, 1932

Error to District Court, City and County of Denver; E. V. Holland Judge.

Suit under the Declaratory Judgments Act by Anna Lynch against the City and County of Denver and others. To review the judgment the defendants bring error.

Reversed.

HILLIARD J., dissenting.

James D. Parriott and Frederick P. Cranston, both of Denver, for plaintiffs in error.

Thomas A. Nixon, of Greeley, and Raymond L. Sauter, of Sterling, amici curiae.

Quiat & Cummings, of Denver, and George H. Blickhahn, of Walsenburg, for defendants in error.

BURKE J.

Plaintiffs in error are hereinafter referred to as the city, defendant in error Lynch as plaintiff, and defendant in error Luxford as the county judge.

This suit is prosecuted under our Declaratory Judgments Act (Laws 1923, p. 268), and its purpose is to secure a judicial determination of the constitutionality of Colorado's 'Old Age Pension' Law and an interpretation thereof. It was brought by plaintiff against all the plaintiffs in error and the county judge. The latter, by his answer, took substantially the same position as plaintiff, admitted the constitutionality of the statute, and alleged that he had discharged, and stood ready to discharge, all his duties thereunder. The district court held one clause of the act unconstitutional, but sustained the remainder, and entered judgment accordingly. To review that judgment the city prosecutes this writ; and, because of the position taken by the county judge, he is made a defendant here.

In 1927 the General Assembly passed 'An Act Relating to Old Age Pensions,' etc. Chapter 143, p. 542, Laws 1927.

Section 1 thereof authorized, but left it optional with, the county commissioners of each county to establish the system provided by, and to operate under, the terms of the act. Section 2 extended its provisions to any person qualified thereunder 'while residing in a County or City and County in this State which maintains a system of old age pensions.' Subdivision A of section 3 fixed the requisite age at 70 years, while section 18 provided that the commissioners of each county 'which establishes an old age pension system pursuant to the provisions of this Act' should make the appropriations necessary to effectuate it. Benefits under the act were, by its terms, limited to persons whose incomes were less than $1 per day, who had been citizens of the United States and residents of the state for fifteen years, who were not inmates of certain specified institutions, who had not during the past ten years been imprisoned for felony, who had not deserted or failed to support a family, who had not during the past year been vagrants, who had no relative able and legally liable to support them, who were not supported by charitable institutions, whose property did not exceed $3,000 in value, and who had not disposed of their property for the purpose of bringing themselves under the terms of the act. It authorized the county judge to order, as a condition precedent to the granting of relief, the transfer of applicant's property to the county commissioners as trustees. It made the county attorney the legal representative of the commissioners for the purposes of the act. Section 9 provided for a sworn application to the county judge, on forms to be furnished by the county commissioners, an investigation of merits by the judge, and a decision thereon. It provided that said judge should 'fix the amount of the pension with the approval of the Board of County Commissioners,' and that 'the decision of such Court and Board shall be final.' The act further provided for the issuance of a certificate to the applicant, reports by him to the judge, modifications under changed circumstances, cancellation of certificates improperly obtained or whose holders had been convicted of certain offenses, reports by the commissioners to the secretary of state, and finally for the punishment of offenses committed in relation to the statute.

In 1931 the General Assembly passed 'An Act Relating to Old Age Pensions,' etc., S. L. 1931, p. 678, c. 131, whose title varies in certain particulars from that of the act of 1927. The later title makes no reference to 'amendment,' but this act is in fact, and expressly in its body, an amendment of the former. It amends section 1 by making the system compulsory. It amends subdivision A of section 3 by reducing the age limit from 70 to 65 years, and it deletes from said sections 2 and 18 the quoted phrases relating to the optional character thereof.

Since no question is here raised concerning the validity or applicability of the Declaratory Judgments Act (Laws 1923, p. 268), we assume these without deciding them. It is admitted that, if the Old Age Pension Act, as so amended, is valid, plaintiff is within its terms. The clause thereof held unconstitutional by the trial court, and admitted here by counsel for plaintiff to be so, is said provision of section 9 that the judge shall fix the amount of the pension 'with the approval of the Board of County Commissioners'; which necessarily carries with it the words 'and board' in the following provision of the same section, i. e., that 'the decision of such Court and Board shall be final.'

All these parties, save the county judge, join the propounding to the court some thirteen interrogatories, many of them abstract, and but remotely related to the litigation. For instance, 'Has the legislature the right to impose upon the person who happens to be county judge additional duties which may or may not be judicial?' In declining to answer such questions, we say again: 'This act [Declaratory Judgments Act] was not intended to repeal the statute prohibiting judges from giving legal advice, nor to impose the duties of the profession upon the courts, * * * nor to settle mere academical questions.' Gabriel v. Board of Regents, etc., 83 Colo. 582, 586, 267 P. 407, 408.

We find it unnecessary and inadvisable here to go further than is requisite to dispose of the question of the constitutionality of the legislation, especially in view of the fact that we have been forced to the conclusion that it is, beyond doubt, unconstitutional. Although not bound by counsel's admission that, as written, it is so, we yet commend the judgment which reached that conclusion and the frankness which prompted its statement.

'The powers of the government of this state are divided into three distinct departments,--the legislative, executive and judicial; and no person or collection of persons charged with the exercise of powers properly belonging to one of these departments shall exercise any power properly belonging to either of the others, except as in this constitution expressly directed or permitted.' Article 3, Colo. Constitution, p. 37, C.L. 1921.

'The departments are distinct from each other, and, so far as any direct control or interference is concerned, are independent of each other. More: they are superior in their respective spheres.' Greenwood C. L. Co. v. Routt et al., 17 Colo. 156, 162, 28 P. 1125, 1127, 15 L.R.A. 369, 31 Am.St.Rep. 284.

Generally speaking, 'it is incumbent upon each department to assert and exercise all its power whenever public necessity requires it to do so; otherwise, it is recreant to the trust reposed in it by the people. It is equally incumbent upon it to refrain from asserting a power that does not belong to it, for this is equally a violation of the people's confidence. Indeed, the distinction goes so far as to require each department to refrain from in any way impeding the exercise of the proper functions belonging to either of the other departments.' State ex rel. Schneider v. Cunningham, 39 Mont. 165, 101 P. 962, 963.

The practical...