In re Election of District Judges

• Decision Date: 18 May 1888
• Citation: 11 Colo. 373,18 P. 282
• Parties: In re ELECTION OF DISTRICT JUDGES.
• Court: Colorado Supreme Court

18 P. 282

11 Colo. 373

In re ELECTION OF DISTRICT JUDGES.

Supreme Court of Colorado

May 18, 1888

Opinion rendered pursuant to the following request of the governor. To the Honorable Judges of the Supreme Court:

GENTLEMEN By section 3 of a constitutional amendment adopted November 2, 1886, it is provided that the supreme court shall give its opinion upon important questions, upon solemn occasions, when required by the governor. The general assembly, by an act approved thereof March 24, 1887, divided the state into nine judicial districts. In accordance with the power given it by section 12 of the amendment to the constitution adopted November 2, 1886, the county of Arapahoe constitutes the Second judicial district, and by section 15 of the aforesaid act said Arapahoe county became entitled to two judges. By section 9 of said act the counties of Boulder, Weld, Larimer and Logan constitute the Eighth judicial district; and by section 10 the counties of Pitkin, Garfield, Grant, and Routt constitute the Ninth judicial district. At the last general election a judge was elected in each of said districts, and each of said judges now claims that he is entitled to hold the office for the term of six years by virtue of his election. I have been requested by the secretary of state upon whom are devolved certain duties under general section 1168, p. 414, Gen. St., in regard to notice of election, to exercise my prerogative, and request of the supreme court an opinion in the premises. The question submitted, therefore is: 'For what length of time were the judges of these three districts elected?' And to the end of removing all doubt in the premises at as early a date as possible, in the interest of the public good, you are respectfully requested to give such an opinion at your earliest convenience.

Truly yours.

ALVA ADAMS, Governor.

ELBERT, J.

Prior to the act of March, 1887, referred to, the state was divided into seven judicial districts. The act of 1887 increased the number of districts to nine, and the Eighth and Ninth districts referred to were new districts, in which there was no district judge, and for which the governor was authorized under the provisions of the act, to appoint a judge, as in case of a vacancy, who should hold his office until the next general election, and until his successor was elected and qualified. For each of these new districts a judge was elected at the last general election, and the claim they make presents the question whether they hold for a full term of six years, or for a fractional or unexpired term ending at the time fixed by law for all the terms of district judges to expire. The question is not without difficulty, and must be determined by a consideration of a number of provisions contained in article 6 of the constitution, wherein the framers of that instrument outlined a general judicial system for the state. As originally adopted, article 6 of the constitution provided, inter alia, (1) by section 12, that the term of office of district judges should be for six years; (2) by section 15, that the term of office of all judges of the district court elected in the several districts throughout the state should expire on the same day. The legislature of 1877, the first which assembled under the constitution, provided that at the general election in 1882 and every six years thereafter, there should be elected in each judicial district one judge of the district court. Section 1157, Gen. St. It was also provided that the regular term of office of all state, district, and county officers and of the judges of the supreme court, should commence on the second Tuesday of January next after their election, except as otherwise provided by law. Gen. Laws, § 936. This secured the uniformity in the commencement, duration, and termination of the terms of office of district judges which the constitutional provisions cited contemplated. Having prescribed the two foregoing rules respecting the duration of term and the end of term of district judges as permanent rules regulating the district system, it became necessary for the framers of the constitution to provide for certain contingencies that were liable to interrupt the regular working of the system which they had established. Among the contingencies foreseen and provided for was (1) the contingency of vacancies in judicial offices; (2) the contingency of a demand for an increased number of judicial districts. To meet the first contingency they adopted section 29 of article 6, as follows: 'Sec. 29. All officers provided for in this article, excepting judges of the supreme court, shall, respectively, reside in the district, county, precinct, city, or town for which they may be elected or appointed. Vacancies in elective offices shall be filled by election; but, when the unexpired term does not exceed one year, the vacancy shall be filled by appointment, as follows: Of judges of the supreme and district courts, by the governor; of district attorneys, by the judge of the court to which the office appertains; and of all other judicial offices, by the board of county commissioners of the county where the vacancy occurs.' To meet the second contingency they adopted section 14 of article 6, as follows: 'Sec. 14. The general assembly may, after the year 1880, (whenever two-thirds of the members of each house shall concur therein,) but not oftener than once in six years, increase the number of the judicial districts and the judges thereof. Such districts shall be formed of compact territory, and bounded by county lines, but such increase or change in the boundaries of a district shall not work the removal of any judge from his office during the term for which he shall have been elected or appointed.' It is clear, under the provisions of section 29 as originally adopted, that, in case of a vacancy and an election to fill it, the election would be for an unexpired term. Such is the express language of the section. The first legislature, however, submitted for adoption an amendment to section 29 of this article, which was adopted in 1878, and which provides, inter alia, that 'the judges of the supreme, district, and county courts appointed [to fill vacancies] under the provisions of this section shall hold office until the next general election, and until their successors elected thereat shall be duly qualified.' The section, as amended, does not use the phrase 'unexpired term,' possibly and presumably for the plain reason...