People ex rel. Attorney General v. Curtice

Citation117 P. 357,50 Colo. 503
PartiesPEOPLE ex rel. ATTORNEY GENERAL v. CURTICE et al.
Decision Date01 May 1911
CourtColorado Supreme Court

Rehearing Denied June 5, 1911.

Quo warranto by the People, on the relation of the Attorney General, against George D. Curtice and others, to compel respondents to show by what authority they held and exercised the duties of the office of county commissioners of the city and county of Denver. Decree for relator.

John T. Barnett, Atty. Gen. (R. D. Thompson and H Riddell, of counsel), for relator.

Joshua Grozier, Henry A. Lindsley, and E. F. Richardson, amici curiae.

Henry J. Hersey and Ralph Talbot (N. Walter Dixon, of counsel), for respondents.

BAILEY J.

This is an original proceeding, in quo warranto, in the name of the people, on relation of the Attorney General, requiring the respondents, holding and exercising the duties of the office of county commissioner of the city and county of Denver, to answer and show by what authority they assume to hold, and exercise the duties of, such office. Under the issues, as framed by the petition and writ and the answer and return thereto, the soundness of the reasoning upon which the conclusions were reached in the case of People ex rel Attorney General v. Johnson, 34 Colo. 143, 86 P. 233, is directly challenged. The application involves, in the main, a consideration and construction of section 2 of article 20 of the Constitution of the state.

In the Johnson Case, the right to name in the charter two persons instead of one to discharge the duties devolved by the Constitution and general laws upon the county judge, was involved, but the decision was not placed upon the ground that that could not lawfully be done, nor will that question be now considered or decided. That case was determined upon the broad proposition, that the people of the whole state could not amend their Constitution so as to permit the people of the consolidated body, known as the city and county of Denver, by their charter to name agencies other than those already provided by the Constitution and general laws, to discharge, within that territory, governmental duties relating to state and county affairs. We therefore direct our attention to a consideration of the application exclusively along these lines.

As in the Johnson Case, so now, we are chiefly concerned with an interpretation of this particular section, not to a consideration of article 20 as a whole, or the charter of Denver, except as they, or some portions of them, may be incidentally involved. Upon the main question we are relieved of the necessity of as full argument and citation as otherwise might be necessary, because of the convincing, exhaustive and unanswerable discussion of the subject in the dissenting opinion of Mr. Justice Steele in the Johnson Case, concurred in by Mr. Justice Gunter, and the dissenting opinion of the latter in the case of People v. Horan, 34 Colo. 304, 86 P. 252, concurred in by Mr. Justice Steele. We adopt the reasoning of both of these dissenting opinions, and refer to and rely upon them, and the authorities cited, to support the views now expressed, and the conclusions here reached.

Let it first be fully apprehended, a thing which seems to have escaped the attention of a majority of the court in the Johnson Case, that article 20 as written, is a part of the Constitution of the state, the same as any other of its provisions, and is as much in force as any part of the original Constitution itself. It is not only a part of the Constitution, but it is there to stay, until the authority which voted it in shall vote it out. It, as any other part of the Constitution, is to be given force and effect according to its plain intent, purpose and meaning. When the whole people speak through a fundamental law, or by amendment thereto, not in conflict with the federal Constitution, all should hear and heed, more especially the courts, whose function is to interpret, and where possible uphold and enforce, not nullify, overthrow and destroy the law. It is not too much to say that had article 20 been written in the original Constitution, no one would ever have had the temerity to question the propriety of its provisions and their effectiveness. This article must now be considered, treated and construed as if thus originally written therein.

Section 3 of the article, by express provision, terminated, upon its adoption, the terms of office of all officers of the then city of Denver, of the included municipalities and of the old county of Arapahoe, a portion of which, together with the city of Denver and included municipalities, were then merged into the consolidated municipality of the city and county of Denver. It in effect did away with all county officers and offices, purely as such, in the consolidated territory, and provided a single set of officers or agencies to perform, in the new minicipality, all duties of a local nature and all duties pertaining to governmental state and county affairs as well. The conclusion is irresistible that since the adoption of that article, and the formation of the city and county of Denver, there has never been, within that territory, a county office or county officer, as such, except only to the extent that this situation may have been affected by the decisions in the Johnson, and other so called county officers' cases.

Keeping in mind then, that, within the territory comprising the city and county of Denver, no county office, or county officer, as in other counties of the state, exists, we come to a consideration of the meaning and purpose of that portion of section 2 of article 20 which reads:

'The officers of the city and county of Denver shall be such as by appointment or election may be provided for by the charter; and the jurisdiction, term of office, duties and qualifications of all such officers shall be such as in the charter may be provided; but every charter shall designate the officers who shall, respectively, perform the acts and duties required of county officers to be done by the Constitution or by the general law, as far as applicable.'

There is no element of uncertainty about this provision. It needs no construction; it interprets itself. The question is, shall it be given its plain, obvious and common-sense meaning and enforced accordingly, as other provisions of the Constitution are interpreted and enforced? There is no apparent reason for doing otherwise. Why scrutinize article 20 in hostile spirit or treat it as an interloper? It is a child of the same parentage as the original Constitution. This court has again and again held it to be a part thereof, and it is so in all its provisions, and for all purposes, according to its clear intent.

This section does not imply that there is no county or county government within that territory; there is therein a county and a county government, just as both exist in other portions of the state. Section 2 not only does not in fact set aside governmental duties and functions as to state and county affairs in this territory, it does not even pretend to do so, and by no stretch of the imagination can it be fairly held to do so. Neither is there any other provision of article 20 which does it. These duties are fixed absolutely fixed, until changed by the same power which created them. Section 2 expressly recognizes that such duties are in existence and must be discharged, and forthwith proceeds to provide and declare by whom they shall be performed. The whole people of the state have declared by their fundamental law that this may be done. That was a question of governmental policy for the people to determine, and this policy, when once declared, may not be ruthlessly set aside by the courts, except it is shown to violate in some way the federal compact with the state. It is fundamental that no part of the state Constitution itself can be inoperative unless so because in conflict with some provision of the enabling act or the federal Constitution. All that article 20 purports to do relative to the county offices is to provide that the people of the city and county of Denver, through their charter, shall designate the agencies, which are to discharge the respective duties and functions which pertain to them. There is no warrant or authority in article 20 to the people of the city and county of Denver to alter, change or dispense with such acts and duties. They remain, as before, subject to the Constitution and general laws, and are exclusively under the control of the Legislature. The people of the city and county of Denver have not been given, and do not have, the power by charter to in any way change the duties of governmental officers, so far as they relate to state and county affairs, and there can be no ground for such contention if article 20 be properly read and understood. The city and county of Denver has not been freed from the Constitution. It is as much subject to it as any other part of the state. Article 20 is a part of the Constitution. Upon its adoption certain portions of the Constitution, as it theretofore existed, became inapplicable to this particular territory, because of the express provision of the new article. This article, to the extent which it undertook to do so, being the last expression of the people upon the subject, modified the Constitution so far as it applied to the territory in question, and certain provisions thereof became inapplicable therein. Article 20 is a grant of power to the people of the city and county of Denver, where theretofore no power in that respect existed, to do certain specific things, relative to the designation of agencies to discharge in that territory governmental duties fixed by the Constitution and general laws. They have just such power and...

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