People ex rel. Engley v. Martin

• Decision Date: 16 April 1894
• Citation: 19 Colo. 565,36 P. 543
• Parties: PEOPLE ex rel. ENGLEY, Attorney General, et al. v. MARTIN. SAME v. ORR.
• Court: Colorado Supreme Court

36 P. 543

19 Colo. 565

PEOPLE ex rel. ENGLEY, Attorney General, et al. v. MARTIN.

SAME v. ORR.

Supreme Court of Colorado

April 16, 1894

Quo warranto on the relation of Eugene Engley, attorney general and Robert W. Steele, district attorney, against D. J Martin. Quo warranto by the same plaintiffs against Jackson Orr. Judgment of ouster in favor of plaintiffs.

The above-entitled cases are considered together in the opinion. They were argued and submitted together, the pleadings being substantially the same, except as to the names of the parties and offices. The informations show, inter alia, that respondent Martin was excise commissioner; that respondent Orr was fire commissioner, and that, as such, they were members of the fire and police board of the city of Denver when the controversy herein arose; and that they have ever since continued to act as such officers. In January, 1894 while respondents were so holding said offices, the governor preferred charges against them for misconduct. Upon a hearing before the governor, evidence was introduced, and the parties were heard in their own behalf; and upon the conclusion of the hearing the following findings were made, and stated in writing, by the governor: 'I therefore find from the evidence in this case that--First, the defendants, as members of the fire and police board, in knowingly sending special policemen to the gambling houses of Denver for the protection of said houses by the city police, were guilty of malfeasance in office; and, second, that, in failing to cause to be arrested persons whom they knew to be in open violation of the law, they were guilty of neglect of duty. It is therefore, for the causes hereinbefore specified, ordered this 7th day of March, 1894, that Jackson Orr be, and he is hereby, removed from the office of fire commissioner of the city of Denver; and D. J. Martin be, and he is hereby removed from the office of excise commissioner of the city of Denver. Davis H. Waite, Governor of Colorado.' A copy of the order of removal was on March 7, 1894, duly served upon said Orr and Martin. On March 8, 1894, the said Davis H. Waite, governor aforesaid, at the executive office in the city of Denver, and under his hand, as governor aforesaid, in writing, appointed one Samuel D. Barnes as excise commissioner of said city of Denver, vice D. J. Martin, removed, and Dennis Mullins to be fire commissioner, vice Jackson Orr, removed. Said appointments, in writing, were in words and figures as follows:

'Executive Order. March 8th, 1894. Ordered, that Samuel D. Barnes, of 126 Lincoln avenue, Denver, be, and he is hereby, appointed excise commissioner of the city of Denver for the unexpired term ending on the second Tuesday of April, 1895, vice D. J. Martin, removed. [Signed] Davis H. Waite, Governor of Colorado.'

'Executive Order. March 8, 1894. Ordered, that Dennis Mullins, of 3050 Larimer street, Denver, be, and he is hereby, appointed fire commissioner of the city of Denver for the unexpired term ending on the second Tuesday of April, 1895, vice Jackson Orr, removed. [Signed] Davis H. Waite, Governor of Colorado.'

The answers of respondents contain, among other things, the following: That respondents, as members of the fire and police board, 'were not guilty of sending special policemen to the gambling houses of Denver for the protection of said houses by the said police, but, on the contrary thereof, the said special policemen were sent to the gambling houses of the city of Denver for the purpose of preserving the public peace; preventing riots and disturbance; preventing minors, intoxicated persons, or others under disability, from frequenting such houses; to apprehend persons guilty of any disturbance or breach of the peace, and for the purpose of giving information as to the presence and whereabouts of suspicious characters; to ascertain the names of persons frequenting such houses and carrying them on, and the places where gambling was carried on at the said city of Denver, with a view to restricting and controlling the said evil and vice, in order to its eventual suppression. Avers, howsoever, that the said assumed, attempted, and pretended removal of this defendant from the said office was for political reasons, and no other, for that this defendant had refused, before that time, to remove from their positions and places members of the police force and of the fire department of the city of Denver who were, and long had been, faithfully serving in their said positions and places, at request of the said Davis H. Waite, solely because the said persons were not of the same political faith and affiliation with the said Davis H. Waite, and had refused to appoint, in the stead of the said persons, those of the same political party, faith, and affiliation of the said Davis H. Waite, which said removals and appointments so requested by the said Davis H. Waite, this defendant avers, were, and would have been, in violation of the provisions of the charter of the city of Denver; and the defendant avers that the said attempted and pretended removal of this defendant by the said Davis H. Waite, for political reasons, only, as aforesaid, was in violation of the forty-fifth section of the third article in the certain act of the general assembly of the state of Colorado entitled 'An act to revise and amend the charter of the city of Denver,' approved April 3, 1893.'

Sess. Laws 1893, p. 172: 'Sec. 45. Immediately upon the passage of this act, and biennially thereafter, the governor of the state of Colorado shall, by and with the advice and consent of the senate appoint the fire commissioner, the police commissioner and the excise commissioner for the term of two years, who shall in 1893 take the places, and shall exercise the powers and perform the duties of the fire and police board of the city of Denver. The governor may, in vacation of the senate, fill vacancies by appointments in writing filed with the secretary of state; and all appointments by the governor shall be made with power of suspension or removal at any time for cause, to be stated in writing, but not for political reasons. The fire commissioner shall be the president of said board. Not more than two (2) members of said board shall be of the same political party, and all of said appointments shall be made to expire on the second (2nd) Tuesday in April.'

The informations show that Mullins and Barnes, having qualified, demanded possession of the offices, and that Orr and Martin refused to vacate. Thereupon, these proceedings were instituted. The remaining facts sufficiently appear in the opinion.

Syllabus by the Court

1. The power of the governor over the fire and police board of the city of Denver, in respect to orders of appointment and removal, depends entirely upon the terms of the charter, as amended by the legislature in 1893; and it is the province of the courts to construe such legislative act, in cases of actual litigation arising thereunder.

2. 'The several departments of the government are equal in dignity, and of co-ordinate authority, and neither can subject the other to its jurisdiction, or strip it of any portion of its constitutional powers; but the judiciary is the final authority in the construction of the constitution and the laws, and its construction should be received and followed by the other departments.'

3. The decision in Trimble v. People, 34 P. 981, 19 Colo. 187, approved.

4. The limitation clause in the charter of 1893, forbidding the governor to remove members of the fire and police board for political reasons, was intended to promote efficiency in the fire and police departments, and to prevent their being used to advance the interests of any political party or individual; but, as the charter now stands, practical effect cannot be given to such limitation, except as it may operate upon the conscience of the executive, and so control his official conduct.

5. It is a presumption of law that every public officer does his duty, and this presumption is especially strong in the case of the governor,--the chief executive officer of an independent state.

6. Under the charter of 1893, when the governor makes an order for the removal of a member of the fire and police board, and states the cause therefor in writing, such written statement by the governor must be held the exclusive and conclusive proof of the cause for making such order.

J. Warner Mills, Platt Rogers, Robert W. Steele, Eugene Engley, and Thomas Ward, Jr., for plaintiffs.

Wells, Taylor & Taylor, for defendants.

ELLIOTT, J. (after stating the facts).

The taking of original jurisdiction of these proceedings must not be understood as establishing a precedent. If this court were to take cognizance of every application within its original jurisdiction, there would be little time remaining to devote to appellate business. We have felt constrained to entertain these original proceedings because of the disturbed condition of public affairs incident to the fire and police board controversy. In so doing, we have yielded to the fears of others, rather than to any serious apprehensions of our own. While we have been constrained by a desire to speedily allay public anxiety by avoiding the delays of nisi prius trials, and probable appellate proceedings, it should not be overlooked that the delays thus far, have not been confined to the courts. From the informations filed herein, it appears that on January 17, 1894, the governor cited Messrs. Orr and Martin to appear before him to answer the charges preferred against them; that two days afterwards the evidence was taken upon said charges; and that seven weeks thereafter, March 7, 1894, the orders of removal were made. During the three weeks following, there...