Lee v. Morley

• Decision Date: 17 May 1926
• Docket Number: 11555.
• Parties: LEE v. MORLEY, Governor, et al.
• Court: Colorado Supreme Court

247 P. 178

79 Colo. 481

LEE v. MORLEY, Governor, et al.

No. 11555.

Supreme Court of Colorado, En Banc.

May 17, 1926

Rehearing Denied June 15, 1926.

Error to District Court, City and County of Denver; George F Dunklee, Judge.

Mandamus by Samuel W. Lee to compel Clarence J. Morley, as Governor and others to certify voucher, issue warrant, and pay him salary. Judgment of dismissal, and plaintiff brings error.

Affirmed.

Arthur R. Morrison, of Denver, for plaintiff in error.

William L. Boatright, Atty. Gen., Charles Roach, Deputy Atty. Gen and Jan S. Breitenstein, Asst. Atty. Gen., for defendants in error.

BURKE J.

Plaintiff in error had been employed by the state as a deputy prohibition agent, at an annual salary of $2,000, payable monthly, and paid up to December 30, 1925. Alleging that he discharged the duties of that office the following month, he brought mandamus to compel the Governor to certify his voucher, the auditor to issue his warrant, and the treasurer to pay him. They answered that on the last-mentioned date the Governor issued an executive order by reason of which plaintiff's office 'ceased to exist'; hence they had no duties in the premises. The cause was tried to the court, the alternative writ was quashed, and the bill dismissed. To review that judgment, plaintiff brings error.

We have only to determine the validity and effect of the said executive order. In doing so, we assume the valid appointment of plaintiff and the discharge of his usual duties during the month in question.

'The Governor of the state shall compel the enforcement of all provisions of this act, and for this purpose he may call upon any state, district, county, precinct or municipal officer, or he may appoint such agents as necessity may require * * * and to enable the Governor to make this act effective, there is hereby created a law enforcement fund, to which the General Assembly shall appropriate out of any unappropriated money in the state treasury, the sum of five thousand dollars annually. The state auditor is hereby authorized to draw warrants upon such fund, and the state treasurer shall pay same upon vouchers certified by the Governor. * * *' Section 3723, p. 1104, C. L. 1921.

The foregoing is section 23, c. 98, L. 1915, 'An act relating to intoxicating liquors.' Under that section plaintiff had been employed. The department operating under it was known in the executive offices as the 'law enforcement department.' It appears from the record that, in addition to the plaintiff, and other paid employees so appointed, the Governor had commissioned certain 'volunteer agents.'

In 1918 the civil service amendment to the Constitution (section 13, art. 12, p. 66, C. L. 1921) was passed, and became effective, and plaintiff's office came within its terms. It provides that civil service employees 'shall be removed or disciplined only upon written charges.'

When Governor Morley took office in January, 1925, he found the said 'law enforcement department' in operation under said civil service amendment and statute, and appointed plaintiff to his position about May 9, 1925. On the 30th day of December following he issued the order in question, which reads:

'Executive Order.

'It appearing that the department of the government of Colorado known as the law enforcement department, existing under section 3723, Compiled Laws of Colorado 1921, consisting of a number of paid agents whose salaries and expenses are met from periodic appropriations made from the Governor's law enforcement fund, is no longer necessary for the proper and economic administration of the act under which said department exists, and that improved and more economical administration of said act can be accomplished without said department;

'And it further appearing that it is for the best interests of the state to rescind the commissions and authority of those certain volunteer agents appointed by the Governor for the enforcement of the intoxicating liquor laws as provided by said statute, who receive no salaries or expenses out of said fund:

'Therefore, in the interest of economy and more effective administration, it is ordered that the said law enforcement department be, and the same hereby is, abolished, and that the commissions and authority of said volunteer agents be and the same hereby are revoked.

'Given under my hand and the executive seal this 30th day of December, A. D. 1925.

'[Seal] Clarence J. Morley, Governor.'

Thereafter the Governor proceeded upon the theory that this order terminated the employment of all paid agents, and no more were appointed.

It should here be observed that no question of the right of the Governor to appoint or discharge so-called 'volunteers,' or unpaid agents, or the jurisdiction of the civil service commission over such agents, is before us.

It is contended that the Legislature did not create the law enforcement department; that it could not delegate to the Governor the power to create an office; that the office held by plaintiff was created, and could only be abolished, by the Legislature; and that plaintiff could only be 'discharged' as provided by the civil service amendment...