Darrow v. People ex rel. Norris

Decision Date18 November 1885
Citation8 P. 661,8 Colo. 417
PartiesDARROW v. PEOPLE ex rel. NORRIS.
CourtColorado Supreme Court

Appeal from superior court of Denver.

Mr. McCord, for appellant.

Mr. Hankey, for appellees.


The information in this case charges respondent with having wrongfully and unlawfully usurped and intruded into the office of alderman of the city of Denver. It is averred therein that at the time of his election and induction into office he was disqualified from holding that position, or performing the duties thereof, by reason of his having paid no taxes in said city during the year previous. A general demurrer was filed to the information, which the superior court overruled, and, respondent declining to plead, a judgment of ouster was duly pronounced. An appeal from this judgment brings the proceedings before us for review.

The record and the assignments of error present three important questions for adjudication. The first of these questions attacks the legal existence of the superior court upon constitutional grounds. It is urged that the law (chapter 103, Gen. St.) through which that court derives its existence was designed for the city of Denver alone, and hence is obnoxious to section 25 of article 5 of the constitution prohibiting local or special legislation. Several cases are cited which at first may seem to support counsel's position, but in no instance is the statute which is held invalid exactly similar in the particular mentioned to the act before us.

If this act were a clear and unequivocal attempt to evade the constitutional inhibition, and create a superior court for one particular city, we would unhesitatingly accede to the views of counsel. Such legislation, although the purpose be disguised by the use of general language, is not to be tolerated. But, construing all the provisions of the statute together, we cannot discover any such attempted evasion. Denver, it is true, is the only city to which the act at present applies. But the legislature clearly intended to provide for places that may hereafter acquire the population mentioned. The law is general, and is unlimited as to time in its operation. There is nothing unreasonable in the supposition that other towns and cities within the state will eventually contain 25,000 inhabitants. Whenever this size is attained by such municipal corporations, the act becomes applicable thereto. This objection of counsel is, in our judgment, not well taken. Nor is their proposition that the statute is obnoxious to sections 14 and 28 of article 6 of the constitution any more tenable. The superior court has no original criminal jurisdiction whatever; its authority is confined territorially to the corporate limits of the city in which it exists; it may entertain appeals from justices of the peace in cases relating to the violation of city ordinances. Hence it appears that, aside from its territorial limitations, the superior court is denied authority possessed by the district court over a prominent and extensive branch of the law, while in an important class of cases it is given a jurisdiction withheld from the latter court. In these and other respects there is a radical difference between the two courts. The jurisdiction of the former is concurrent with that of the latter in so far as most of the matters upon which it may adjudicate are concerned but the same is true of county courts as to civil cases not connected with the settlement of estates, where the debt sued for, or the value of the property involved, does not exceed $2,000; yet it cannot be claimed that on this account alone these courts are of the same grade as the district court. The fact that procedure in the superior court is, in most respects, similar to that prescribed for district courts, has no special significance. Supposing the legislature had expressly enacted that procedure before the county court should, with certain specified exceptions, be the same as in the district court, would the county court thereby become a district court; or would it be contended that this made them courts of the same class within the meaning of the constitution?

In holding, as we do, that the superior court, as created by the law now before us, is not a district court, nor a court of the same class or grade, we answer the objections resting upon both of the constitutional provisions last above mentioned.

We think that the constutional authority for creating courts in cities and incorporated towns, as given by section 1 of said article, is neither interpreted nor limited, as counsel seem to believe, by section twenty-six thereof, relating to police magistrates, and we hold that section 1 authorizes the establishment of the court in question.

The second objection presented for consideration challenges the constitutionality of the statutory provision under which this proceeding was instituted. It is asserted that the legislature could not declare the payment of taxes a necessary qualification for membership in the board of aldermen. Counsel argue that section 6, art. 7, of the constitution, which provides that 'no person, except a qualified elector, shall be elected or appointed to any civil or military office in the state,' by implication inhibits the legislature from adding the property qualification under consideration. There is nothing in the constitution which expressly designates the qualifications of councilmen in a city or town, and this section contains the only language that can possibly be construed as applicable thereto. But it will be observed that the language used is negative in form; that it simply prohibits the election or appointment to office of one not a qualified elector. There is no conflict between it and the statute. By providing that a supervisor or an alderman shall be a tax-payer, the legislature does not declare that he need not be an elector. Nor is the provision at all unreasonable; on the contrary, it is a safeguard of the highest importance to property owners within the corporation. The right to vote and the right to hold office must not be confused. Citizenship, and the requisite sex, age, and residence, constitute the individual a legal voter; but other qualifications are absolutely essential to the efficient performance of the duties connected with almost every office. And, certainly, no doubtful implication should be favored for the purpose of denying the right to demand such additional qualifications as the nature of the particular office may reasonably require. We do not believe that the framers of the constitution, by this provision, intended to say that the right to vote should be the sole and exclusive test of the eligibility to all civil offices, except as otherwise provided in the instrument itself; that no additional qualifications should ever be demanded, and no other disqualifications should be imposed. If, as has been well said, they 'had intended to take away from the legislature the power to name disqualifications for office, other than the one named in the constitution, it would not have been left to the very doubtful implication which is claimed from the provision under consideration.' State v. Covington, 29 Ohio St. 102.

The third and last question which we shall consider is, we think fatal to the judgment below. The amended charter of Denver...

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    ...of enactment is not determinative in deciding whether the legislation amounts to unconstitutional special legislation. In Darrow v. People, 8 Colo. 417, 8 P. 661 (1885), we upheld the constitutionality of legislation that created a superior court in any town or city that had more than 25,00......
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1 books & journal articles
    • United States
    • Colorado Bar Association Colorado Rules of Civil and Appellate Procedure (CBA)
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