People ex rel. Carr v. Brown

• Decision Date: 03 February 1897
• Citation: 23 Colo. 425,48 P. 661
• Parties: PEOPLE ex rel. CARR, Attorney General, et al. v. BROWN.
• Court: Colorado Supreme Court

48 P. 661

23 Colo. 425

PEOPLE ex rel. CARR, Attorney General, et al. v. BROWN.

Supreme Court of Colorado

February 3, 1897

Quo warranto on the relation of Byron L. Carr, attorney general and Granville Pendleton, against Quitman Brown. Dismissed.

Byron L. Carr, Atty. Gen., Granville Pendleton and J. A. Fowler, for relators.

Quitman Brown, pro se, and T. M. Robinson, for respondent.

GODDARD J.

This proceeding was instituted by the filing of an information in the nature of a quo warranto, from which it appears that the respondent was elected at the general election of 1895 to the office of county judge of Yuma county for the full term of three years; and that, after having duly qualified, as required by law, he entered upon the discharge of his duties as such judge, and has continued to exercise the functions of the office until the commencement of these proceedings; and which avers, inter alia: 'That on, to wit, the 16th day of April, A. D. 1896, all, or nearly all, of the sureties on said defendant's said bond withdrew from the further liability as bondsmen on said bond by filing their written notice thereof with the county clerk and recorder of said county; that thereafter, on, to wit, the said 16th day of April, A. D. 1896, the said county clerk notified the said defendant of the action of the said bondsmen as last aforesaid; that thereafter, on, to wit, the 18th day of April, A. D. 1896, the said defendant filed with the said county clerk a pretended new, but wholly insufficient, bond; that the board of county commissioners of said county were not at the last said date in session, nor were they to be in session within ten (10) days from said time; that the said county clerk temporarily approved the said pretended new, but wholly insufficient, bond; that thereafter, on, to wit, the 6th day of July, A. D. 1896, the said board of county commissioners of said county, then being duly in session, on the first day of the regular meeting of said board in the month of July, A. D. 1896, disapproved the said pretended, but wholly insufficient, bond of defendant filed as aforesaid, and then and there summoned the said defendant to appear before the said board at a certain time and place within said county, and show cause why he should not be required to file a good and sufficient bond for the faithful discharge of his duties as county judge of said county; that thereafter, on, to wit, the same day, the said defendant, in obedience to the said summons, appeared before the said board at the time and place named in said summons that at said time and place the said defendant did not offer and evidence in support of the sufficiency of his said pretended, but wholly insufficient, bond; that said board of county commissioners then and there ordered the said defendant, within twenty (20) days from the last said date to file a good and sufficient bond in the sum of five thousand ($5,000) dollars for the faithful performance of his duties as county judge with the county clerk of said county; that thereafter, on, to wit, the 15th day of July, A. D. 1896, the said defendant, as a pretended compliance with the last said order of said board, filed another pretended, but wholly insufficient, bond with the said county clerk; that thereafter, on, to wit, the 28th day of July, A. D. 1896, the said board of county commissioners, then being in session, duly disapproved the last said pretended, but wholly insufficient, bond, filed as aforesaid, and the said commissioners being fully satisfied that the said defendant could not and would not file a good and sufficient bond as required by the statute of said state and by the order of the said board of county commissioners, and that said defendant was merely trifling with the said order of said board, and more than twenty (20) days having elapsed since the said 6th day of July, the said board then and there declared the office of county judge of said county vacant; that thereafter, on to wit, the said 28th day of July, the said county clerk notified the said defendant of the action of said board as last aforesaid; that said defendant has not filed, nor attempted to file, any other bond since he was notified of the action of said board of commissioners in disapproving the last said pretended, but wholly insufficient, bond, and that more than thirty (30) days have elapsed since the last said day,'--and sets forth the appointment and qualification of A. J. Sechrist to fill the vacancy created by the removal of the defendant; also the refusal of defendant to surrender the office upon the demand of Mr. Sechrist; and, in conclusion, alleges: 'That said defendant is in possession of said office, performing the functions thereof, without any bond or security of any nature whatever for his acts and doings while so officiating, to the great detriment of the public, and wholly without authority or sanction of law, and consequently against the law and interests of the public.'

The defendant answered, admitting substantially all the material facts stated in the information, except the allegation as to the insufficiency of the bond which he had tendered. Thereupon the relator moved for judgment on the pleadings because it appeared that the respondent had not filed a new bond, 'as required by statute and the order of the board of commissioners,' predicating his right thereto upon the following statutory provisions: 'Whenever the board of county commissioners of any county of this state shall deem the bond given by the sheriff or other officer of the county insufficient, or whenever in their opinion the sureties on said bond are insolvent or permanently removed from the county, or whenever they for any other reason shall consider said bond insufficient for the public security, it shall be lawful for them to require of said sheriff or other officer a new bond, with such sureties and so conditioned as required by law in the first instance.' Mills' Ann. St. § 814. 'In case any sheriff or other officer shall refuse or neglect, for a period longer than thirty days after receiving notice so to do, to give a new bond as heretofore required, then, in that case, it shall be lawful for said board of county commissioners to declare the office vacant and appoint some other person to fill the vacancy, who shall hold the office until a successor is elected or appointed.' I...