Morris v. People

• Decision Date: 12 October 1896
• Citation: 8 Colo.App. 375,46 P. 691
• Parties: MORRIS et al. v. PEOPLE, to Use of SIMMONDS. [1]
• Court: Colorado Court of Appeals

46 P. 691

8 Colo.App. 375

MORRIS et al. v. PEOPLE, to Use of SIMMONDS. ^[1]

Court of Appeals of Colorado

October 12, 1896

Error to district court, Arapahoe county.

Action by the people, for the use of George Simmonds, against Robert Morris and the sureties on his bond as a justice of the peace. Judgment for plaintiff, and defendants bring error. Affirmed.

Chas. G. Clement, for plaintiffs in error.

George Simmonds, pro se.

THOMSON J.

This suit was brought upon the official bond of Robert Morris as justice of the peace, and resulted in a judgment against the defendants, from which they have prosecuted error to this court. The facts are not in controversy. The disagreement between parties relates to the law which should be applied to the facts. At the general election held in Arapahoe county in November, 1888, the defendant Morris was duly elected justice of the peace for precinct No. 2, in that county. Before entering upon the duties of his office, he gave bond pursuant to law, with the other defendants as sureties, conditioned for the faithful discharge of the duties of the office, and the delivery to his successors of all books, papers, and other things which might be so required by law. Morris thereupon entered into his office and discharged the duties pertaining to it for the statutory term of two years. On the 5th day of May, 1890, upon the petition of certain persons styling themselves "residents of justice precinct No. 2, in Arapahoe county," the board of county commissioners divided the precinct, and carved out of it another precinct, which they designated as "No. 12." The relator and Morris both resided in precinct No. 2, as it was constituted after the division. At the general election held in Arapahoe county in November, 1890, the term of office for which Morris was elected being about to expire, himself and the relator were opposing candidates for the office of justice of the peace of the new precinct, No. 2, and both participated in and voted at the election. The relator was the successful candidate and Morris was defeated. Upon the expiration of Morris' term, the relator, as his successor, having duly qualified for the purpose, demanded of him the books, dockets, and papers pertaining to the office; but he refused to deliver them, and retained them, and continued to act as justice until April 7, 1891. Upon the refusal of Morris to comply with the relator's demand, the latter instituted proceedings in mandamus in the district court of Arapahoe county to compel the delivery by Morris to the relator of the books, dockets, and papers belonging to the office. Upon the hearing of the case a peremptory writ was ordered as prayed. Morris appealed from the judgment to the supreme court, which declined jurisdiction of the case, and dismissed the appeal. Thereupon, on April 7, 1891, Morris turned over the books etc., to the relator. During the time Morris had possession of them he received as fees out of business brought to him as justice $331.35. The grounds upon which the defendants in error rely for a reversal of the judgment are: First. That the act of the legislature in pursuance of which the board of commissioners made the order dividing precinct No. 2 is in conflict with section 11 of article 14 of the constitution, and therefore void; that, the order being void, precinct No. 2 has never been divided, and retains its original boundaries; that the election held in November, 1890, for justice of the peace in the alleged new precinct No. 2, was held without authority of law, and that, the only claim of the relator to the office being by virtue of that election, he was without title. Second. That, supposing the statute to be constitutional, the petition upon which the board acted in making the order was not in conformity with the requirements of the statute, and did not authorize the action of the board, and that for that reason the order was invalid, and the attempted division of the precinct nugatory. And, third, that, waiving the foregoing objections to a recovery, the doings of Morris in acting as justice, and receiving the fees and emoluments of the office, after the relator had been elected and qualified as his successor, do not constitute a breach of the conditions of the bond. We shall examine these several positions taken by counsel in the order in which they are stated.

1. The following is section 11 of article 14 of the constitution "There shall, at the first election at which county officers are chosen, and annually thereafter, be elected in each precinct one justice of the peace and one constable, who shall each hold his office for the term of two years; provided, that in precincts containing five thousand or more inhabitants, the number of justices and constables may be increased as provided by law." The act pursuant to which the order of the board was made provides as follows: "The boards of county commissioners of the several counties of this state shall at their July meeting, next after the passage of this act, divide their respective counties into as many justices' precincts as the necessities of the county may require, and upon the petition of the voters of any such precinct may change the same, or create other such precincts, and shall cause to be entered in the journal of their proceedings a record of such precincts, giving accurate boundaries thereof." Gen.St. p. 284, § 146. There is no obvious conflict between the constitutional provision and the statute. The constitution makes no provision concerning the creation of justices' precincts. It contains no limitation upon the power of the legislature to provide for the division of counties into justices' precincts, and for the creation of such new precincts as changing circumstances made from time to time demand. A precinct may become so populous that one justice is unable to transact its business, and the legislature is authorized to provide for additional justices in precincts containing more than 5,000 inhabitants. On the other hand, the territorial area of a precinct containing less than 5,000 people may be so large that the convenience of the inhabitants requires its division, or, by unsettled portions of a county becoming occupied, new precincts may be necessary to accommodate the new population. There is a wide difference between increasing the number of justices in the same precinct and creating new precincts, and there is no constitutional inhibition against legislation looking to the increase or alteration of precincts. The legislature has the authority to provide for the division of counties into justices' precincts in the first instance, and by the same authority it may provide for dividing precincts, changing their boundaries, or establishing new ones. The only constitutional limitation upon its power in the matter of justices' precincts relates to increasing the number of justices in the same precinct. In Board v. Smith (Colo.) 45 P. 357, Chief Justice Hayt, incidentally speaking of the statutory provision which we have quoted, said, "We know of no provision of the constitution with which the act conflicts," and we are unable to see how a limitation upon the power of the legislature to provide for additional justices in the same...