People ex rel. Barton v. Londoner

• Decision Date: 25 October 1889
• Citation: 13 Colo. 303,22 P. 764
• Parties: PEOPLE ex rel. BARTON v. LONDONER.
• Court: Colorado Supreme Court

22 P. 764

13 Colo. 303

PEOPLE ex rel. BARTON v. LONDONER.

Supreme Court of Colorado

October 25, 1889

Appeal from district court, Arapahoe county.

At an election for mayor of the city of Denver, held in April last relator, Barton, and respondent, Londoner, were opposing candidates. The returns on their face gave a majority of 377 for respondent. Upon a canvass by the proper board respondent was declared elected. A certificate issued to him accordingly; and he duly qualified, and has since discharged the duties of the office. Relator claimed that upwards of 1,500 of the votes cast for respondent were illegal and fraudulent; and that therefore he (relator) was elected, and rightfully entitled to the office. He took the proper oath and demanded admission thereto, but was refused. Thereupon he instituted this proceeding in the district court. The jurisdiction of the court was challenged by demurrer. The demurrer was sustained, and judgment rendered dismissing the proceeding. From this judgment the present appeal was taken. The material constitutional provisions referred to in the opinion, but not quoted, are the following:

Const art. 14: 'Sec. 13. The general assembly shall provide by general laws for the organization and classification of cities and towns. The number of such classes shall not exceed four, and the powers of each class shall be defined by general laws, so that all municipal corporations of the same class shall possess the same powers, and be subject to the same restrictions.

'Sec 14. The general assembly shall also make provision by general law whereby any city, town, or village incorporated by any special or local law may elect to become subject to and be governed by the general law relating to such corporations.'

Art. 7: 'Sec. 8. All elections by the people shall be by ballot. Every ballot voted shall be numbered in the order in which it shall be received, and the number be recorded by the election officers on the list of voters, opposite the name of the voter who presents the ballot. The election officers shall be sworn or affirmed not to inquire or disclose how any elector shall have voted. In all cases of contested elections the ballots cast may be counted, compared with the list of voters, and examined, under such safeguards and regulations as may be prescribed by law.'

Pence & Pence, for appellant.

Wolcott & Vaile, Geo. W. Easley, and Lucius P. Marsh, for appellee.

HELM, C.J., ( after stating the facts as above.)

1. It is asserted by respondent that the district court had no jurisdiction to entertain the present proceeding, and that court itself so declared when dismissing the petition. The assertion and judgment are based upon the following statute, and certain constitutional provisions hereinafter considered: 'If the election of a mayor * * * shall be contested, the contest shall be heard and determined by the board of supervisors, under rules which said board shall establish for such hearing.' Denver City Charter, art. 4, § 9. The mayor of Denver is not a member of the city council. He does not preside over either branch of that body, nor does he participate in their proceedings. His relation to the council is in this respect somewhat analogous to that existing between the governor and state legislature. Therefore, no argument can be based upon the fact that each of the boards constituting the council is, by another section of the same act, made the sole judge of the qualifications, election, and returns of its own members. Does the language employed in the statute above quoted operate to deprive the courts of jurisdiction in the premises by quo warranto? Quo warranto is one of the most ancient and important writs known to the common law; the modern proceeding by information, which has almost entirely superseded the ancient writ, being itself nearly 200 years old. This jurisdiction is expressly given to the supreme court by our constitution. It is also, beyond doubt, included in the powers conferred by that instrument upon the district court; where, however, its exercise may be as regulated by statute. It receives express legislative recognition; its ancient use and efficacy being by statute united with its modern, enlarged scope. And, while a few cases hold the contrary, the great weight of authority, as well as the better reason, supports the proposition that, unless the legislative intent to take away the jurisdiction is expressed so clearly as to be practically beyond a reasonable doubt, it will be regarded as undisturbed. Such intent does not thus appear in the statute before us. The board of supervisors is not made the 'sole' or 'exclusive' tribunal to try the contest for mayor, nor are any words employed expressly eliminating the judicial jurisdiction in question. Provisions substantially similar to the one before us have been held to create a cumulative remedy merely, and not to inhibit proceedings by quo warranto. 1 Dill. Mun. Corp. § 202, and cases; McCrary, Elect. § 295, and cases. See, also, Darrow v. People, 8 Colo. 417, 8 P. 661; State v. Camden, 47 N. J. Law, 64; State v. Kempf, 69 Wis. 470, 34 N.W. 226; People v. Hall, 80 N.Y. 117; Hardin v. Governor, 6o Ga. 588; State v. Shay, 101 Ind. 36; State v. Adams, 65 Ind. 393; Com. v. Allen, 70 Pa.St.465. The fact that the jurisdiction of state legislative bodies, in election contests affecting their own members, has universally been held exclusive, does not render such jurisdiction, when lodged in a municipal corporation, also exclusive. The reasoning in those cases which rely upon the supposed analogy between the legislature and council has been shown fallactious. We shall not state the considerations whereby this fallacy appears, but content ourselves by citing a few of the cases in which it is demonstrated: Com. v. Allen, supra; People v. Hall, supra; State v. Kempf, supra; State v. Camden, supra. So far as this branch of the discussion is concerned, which is confined to the language of the provision cited, we must hold the statutory remedy under consideration concurrent with the prescribed Code proceeding by information in the nature of quo warranto.

2. But a more difficult question presented in this case is predicated upon section 12, art. 7, of the constitution, which reads: 'The general assembly shall, by general law, designate the courts and judges by whom the several classes of election contests not herein provided for shall be tried, and regulate the manner of trial, and all matters incident thereto.' We are told that this constitutional provision, when supplemented by appropriate legislation, so operates as to make the proceedings for election contests thus provided exclusive, and inhibit all other methods of trying title to office.

( a) A preliminary consideration is suggested by relator in argument. He earnestly contends that the charter provision relating to the election of mayor is void under this constitutional mandate, on the ground that it is a special and not a general statute; and therefore, since no valid legislative action has been taken in obedience to the constitutional command, that the remedy by information remains unaffected. This specific question was passed upon in Darrow v. People, 8 Colo. 417, 8 P. 661, but we shall again notice it briefly. Prior to the adoption of the constitution Denver was incorporated under a special charter. No action has ever been taken, in pursuance of section 14, art. 14, of that instrument, abandoning the charter, and reincorporating under the general laws authorized by section 13 of the same article. On the contrary, the special charter has been tenaciously preserved, and from time to time amended to meet the requirements of a growing and prosperous city. The right to make amendments thereto, even though palpably local legislation, has been considered and upheld by this court. Brown v. City of Denver, 7 Colo. 305, 3 P. 455; Carpenter v. People, 8 Colo. 116, 5 P. 828; Darrow v. People, supra. Among the specific provisions of the charter existing at the adoption of the constitution was the following: 'Whenever an election of mayor shall be contested, the city council shall determine the same, as may be prescribed by ordinance.' Sess. Laws 1874, p. 260, § 6. This clause in the city charter was not repealed by the constitution. That instrument simply commanded future legislation, and was purely prospective in its operation. Therefore the statute in question was, in any event, saved by section 1 of the schedule. People v. Board, 6 Colo. 202. But, if this were not so, since the constitutional provision is general and affirmative, referring to election contests generally, no negative words being employed, while the statute was a special and particular provision, relating to a particular and purely local election contest, a doubt might fairly arise as to whether the two clauses were so irreconcilably inconsistent as to justify the application of the doctrine relating to implied repeals. By sections 13, 14, art. 14, of the constitution, already referred to, the whole subject of towns and cities is, with two slight limitations, relegated to the legislature. In connection with such municipal corporations, that body is, by these provisions, left to exercise almost plenary power. It determines the mode of organization, and provides for all matters pertaining to government, including the number and kind of officers, their election or appointment, and duties. It may or may not, at its option, create the office of mayor. In some important particulars, all municipal offices are wholly unlike offices created by or expressly recognized in the constitution. Thus these corporations are given a peculiar constitutional status. This fact has been recognized in various ways; for instance, the...