Frost v. Pfeiffer

• Decision Date: 17 July 1899
• Citation: 58 P. 147,26 Colo. 338
• Parties: FROST et al. v. PFEIFFER et al.
• Court: Colorado Supreme Court

58 P. 147

26 Colo. 338

FROST et al. v. PFEIFFER et al.

Supreme Court of Colorado

July 17, 1899

Appeal from district court, Arapahoe county.

Action by Walter C. Frost and others against Emil W. Pfeiffer and others. A demurrer to the complaint was sustained, and the action dismissed, from which judgment plaintiffs appeal. Affirmed.

The late general assembly passed an act creating the county of Teller out of territory embraced within the counties of El Paso and Fremont, which is entitled 'A bill for an act to establish the county of Teller, and the temporary county seat thereof, providing for the appointment of its precinct and county officers, fixing the terms of court therein, and attaching the same to certain congressional, senatorial representative, judicial and normal districts.' By this act the boundaries of the new county are established, and its temporary county seat named. It provides that the county and precinct officers of the respective counties of El Paso and Fremont residing in that portion of the territory of these counties from which Teller county is carved shall be respectively the officers of the latter county for the terms for which they may have been elected or appointed; that the governor shall appoint such other officers as may be necessary to carry on the county government of the new county, who shall hold until the next general election. It also provides for terms of the district court in the new county, establishes a county court, and its terms, and provides what causes then pending in either of such courts in the counties of El Paso and Fremont shall be transferred to the corresponding courts of Teller county. There is also provision for a ratable division between these counties and Teller of the moneys in the treasuries of El Paso and Fremont counties, or which shall be collected or realized from the revenues of 1898 or other sources; that moneys in the hands of the treasurers of these counties belonging to school districts within the boundaries of the county of Teller shall be paid over to the treasurer of the latter, and that the indebtedness of El Paso and Fremont shall be apportioned between the three ratably. It designates the respective congressional, senatorial, judicial, normal, and representative districts to which the new county is attached. It also provides for the adjustment of the revenue and indebtedness between the three counties by the county commissioners thereof; for appeals from their action with respect to these matters, and the appointment of an arbitrator for the purpose of making such adjustment in case they cannot agree; empowers the board of commissioners of Teller county to secure the necessary transcripts of record affecting the title to property in the new county, and establishes the fees and compensation of all county precinct, and other officers of the latter county. The question of creating the new county was not submitted to the vote of the qualified electors of the counties of El Paso and Fremont, nor was any provision for that purpose made. The governor appointed the defendants members of the board of commissioners for the county, and this action is brought by plaintiffs, on behalf of themselves and other taxpayers of the county of El Paso similarly situated, to restrain them from organizing or exercising the functions of that office. Defendants demurred to the complaint, which was sustained and the action dismissed, from which judgment plaintiffs appeal. The contention of counsel for appellants is that the act is unconstitutional. On behalf of appellees it is claimed that the act is constitutional, or, if it contains provisions which are not, enough legal ones remain to sustain the creation of the county, and that the question of its constitutionality cannot be raised in the manner attempted by appellants.

Gunnell & Hamlin, Wells & Taylor, J. C. Helm, Colburn, Dudley & Lewis, and Reese & McArthur, for appellants.

C. J. Hughes, Jr., W. H. Bryant, Branch H. Giles, E. C. Stimson, and B. F. Montgomery, for appellees.

GABBERT, J. (after stating the facts).

Counsel for appellants contend that the title adopted embraces more than one subject, or, if it does not, limits the scope of the act to the particular matters detailed; that all others not within the title as expressed cannot be upheld, and that part of the provisions of the act are illegal. Our constitution (section 21, art. 5) provides, 'No bill, except general appropriation bills, 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.' This provision is mandatory, and legislation falling within its inhibition is ineffectual. The title to this bill, when analyzed with reference to the apparent different subjects named, indicates that its objects are: (1) To establish the county of Teller; (2) to designate the temporary county seat thereof; (3) to provide for the appointment of its precinct and county officers; (4) to fix the terms of court therein; (5) to designate the congressional and other districts to which it shall be attached. From the objects to be attained, as gathered from the title as a whole, its subject must be extracted. In order to establish Teller county certain provisions must be made to enable it to perform its functions as one of the political divisions of the state. The title indicates that the bill which it heads is 'A bill for an act to establish the county of Teller.' This is the controlling purpose of the law. Each of the provisions following, as detailed in the title, relates directly to those necessary to legislate upon in establishing a new county, having but one object, namely, the creation of the county of Teller, and therefore relates to but one subject. Canal Co. v. Bright, 8 Colo. 144, 6 P. 142; Division of Howard Co., 15 Kan. 194; Blood v. Mercelliott, 53 Pa. St. 391. By entering into details in the title it is claimed that the legislature has restricted the act to the particular matters so mentioned. No doubt a title may be so worded that it would restrict all legislation germane to the subject to the ones specified, but that must appear affirmatively or by necessary implication. The bill in question has but one object, embraces but one comprehensive subject, without any limitation, either expressly or by implication, as to what minor subjects will be legislated upon in order to accomplish its object. It recites that its main purpose is to establish the county of Teller, and legislate upon other minor subjects necessary to effect that end, but contains no expression that those monor subjects are the only ones to be legislated upon.

Having reached the conclusion that the title to the bill contains but one subject, and that it does not limit its scope to the particular matters detailed, the inquiry on the branch of the case under consideration is limited to this one: Does the act contain sufficient legal provisions, germane to the subject, to effect the purpose of the legislature in passing it? By its provisions the boundaries of the new county are fixed; its temporary county seat named; provision made for the selection and appointment of its county and precinct officers; the terms of the district and county courts to be held at its county seat designated; the congressional and other districts to which it is attached specified; the class to which it is assigned for the purpose of fixing the fees of its county and precinct officers indicated; and provision made for transcribing the records of the counties of El Paso and Fremont, in so far as they affect the title to property situate in the new county. What other provisions are necessary in order to enable a new county to organize its government, and fully perform its functions? None are suggested, and it is therefore unnecessary to examine the remaining provisions of the act for the purpose of determining whether they be legal or not.

It is urged that the provisions in the act with respect to the selection and appointment of county and precinct officers and the method adopted to fix their fees, are illegal. Conceding that the legislature had no authority to make provision for the appointment of officers in the manner indicated, there is a law under which these appointments can be made. Section 9, art. 14, of the constitution empowers the governor to make designated appointments in case of vacancies, which appointees, in turn, are authorized to fill all others in county and precinct offices,--a provision which is self-executing, and can be resorted to independent of any in the act on this subject. For the purpose of fixing fees, the new county is assigned to a specific class. There is already a general law upon this subject, which classifies all counties in existence at the time of its enactment. The constitution empowers the legislature to classify counties according to population for this purpose. Section 15, art. 14. We must assume that the legislature, in passing the act of 1891, on the subject of fees, classified the counties according to population, and that, in ascertaining the class to which the county of Teller should be assigned for this purpose, the same rule has been adopted, which, by reason of such constitutional authority, would in no sense be special legislation, within the meaning of that term. We conclude, therefore, that, stripping the bill of all its provisions which might be illegal on account of constitutional inhibitions, enough remain which are in no manner dependent upon the illegal portions, when reinforced by the constitution and general laws of the state, to effectuate the purpose of the...