Monash v. Rhodes

• Decision Date: 05 March 1900
• Parties: MONASH v. RHODES.
• Court: Colorado Supreme Court

60 P. 569

27 Colo. 235

MONASH v. RHODES.

Supreme Court of Colorado

March 5, 1900

Appeal from court of appeals.

Action by Clarence M. Rhodes against Edward Monash. From a judgment of the court of appeals (53 P. 236) affirming a judgment for plaintiff, defendant appeals. Affirmed.

I. N Stevens and F. W. Lienau, for appellant.

W. W Dale, for appellee.

GODDARD J.

This case was originally brought in the district court of Arapahoe county, and from a judgment in favor of appellee an appeal was taken to the court of appeals, where the judgment was affirmed. Monash v. Rhodes, 11 Colo.App. 404, 53 P. 236. A concise statement of the facts of the case will be found in this opinion. To review the judgment of the court of appeals the case is brought here, and our jurisdiction is invoked upon the ground that a construction of section 6, art. 4, of the constitution is necessary to its determination; it being insisted that the power of the governor to fill vacancies caused by the resignation of members of the board of public works is controlled by this section, and that such appointments, therefore, hold only 'until the next meeting of the senate.' The court of appeals rejected this view, and held that section 33 of article 3 of the charter of the city of Denver, as amended in 1893 (Sess. Laws 1893, c. 78), controlled such appointments and that by virtue thereof the appointee held the office for the balance of the term for which the resigning member was originally appointed. The view of the court of appeals is in accord with the doctrine announced by this court in People v Osborne, 7 Colo. 605, 4 P. 1074, and Trimble v. People, 19 Colo. 187, 34 P. 981, and as approved in Brown v. Same, 11 Colo. 109, 17 P. 104. The case of Trimble v. People involved the right of the governor to remove a member of the fire and police board, and presented the same question here urged, to wit, whether this section of the constitution controlled in the appointment and removal of an officer whose appointment was provided for in the statute creating the office. Chief Justice Hayt, who delivered the opinion of the court, in speaking upon this question said: 'An analysis of the constitutional provision, however, shows that the officers therein referred to are--First, those whose offices are established by the constitution; second, those whose offices are created by law, the appointment or election to which is not otherwise provided...