People ex rel. Flanders v. Neary
| Decision Date | 04 December 1944 |
| Docket Number | 15512. |
| Citation | 113 Colo. 12,154 P.2d 48 |
| Parties | PEOPLE ex rel. FLANDERS v. NEARY. |
| Court | Colorado Supreme Court |
Error to District Court, Pueblo County; Harry Leddy, Judge.
Action in quo warranto by the People on the relation of Milo J Flanders, a private citizen and elector of the tenth judicial district, against Ralph L. Neary, as district attorney of such district. Order staying the proceedings during the term of defendant's military service and for three months thereafter, and relator brings error.
Affirmed.
A district court's order, staying quo warranto proceedings against district attorney during term of his service in United States Army and for three months thereafter, pursuant to findings that public was not being harmed by respondent's absence from district and that he would be at disadvantage in defending proceedings if stay were not granted, was proper. Soldiers' and Sailors' Civil Relief Act of 1940, §§ 100, 201, 50 U.S. C.A.App. §§ 510 521; Rules of Civil Procedure, rule 106(a)(3); Const. art. 6 § 29; art. 12, § 2.
Omar E. Garwood, of Denver, for plaintiff in error.
A. T. Stewart, of Pueblo, for defendant in error.
This is an action in quo warranto brought under Rule 106(a)(3), Rules of Civil Procedure Colo., on the relation of a private citizen of the tenth judicial district against Ralph L. Neary as district attorney of that district. The record shows that defendant was duly elected district attorney in the November 1940 election, and subsequently duly qualified and assumed the duties of that office; that on or about March 1, 1942, he accepted a commission as major in the United States Army.
Relator prayed for an order directing defendant to show cause why he should not be removed and excluded from office, and also for an order perpetually restraining him from exercising performing or attempting to perform any of the duties of district attorney of the tenth judicial district. This order was sought on the theory: (a) that the two offices which defendant now holds are wholly and completely incompatible; (b) that defendant automatically resigned and vacated the office when he accepted his commission in the United States Army and that since March 1, 1942, the office of district attorney has been vacant; (c) that defendant, since March 1, 1942, has been continuously absent from the state of Colorado and the tenth judicial district, has been wholly unable to perform any of the duties of district attorney of the district, and has abandoned that office. Defendant, through his counsel, filed a motion calling attention to the provisions of the Soldiers' and Sailors' Civil Relief Act, passed by Congress in 1940, 50 U.S. C.A.Appendix § 501 et seq., asking that all proceedings in the case be stayed until his discharge from the military service of the United States, and stating that he had never resigned his office; that since entering military service he had retained his position as district attorney with the consent and authority of the United States War Department, further alleging that 'defendant's assignment by reason of such military service prevents him from remaining in Pueblo county for the trial of the above entitled action and will materially affect his ability to defend such action.'
Thereupon relator filed his motion under rule 56(a), R.C.P.Colo., asking for summary judgment on the ground that there is no genuine issue as to any material facts, and calling attention to section 2, article XII of the Colorado Constitution, which reads: 'No person shall hold any office or employment of trust or profit, under the laws of the state or any ordinance of any municipality therein, without devoting his personal attention to the duties of the same.' Relator also relies upon section 29, article VI of the Colorado Constitution, which is as follows:
The trial court appointed the county attorneys of Pueblo and Otero counties as amici curiae, and thereafter, with their approval, entered an order staying the proceedings in this case during the term of defendant's military service and for three months thereafter. Relator brings the cause here by writ of error and asks that it be determined on his supersedeas application. We have elected to proceed accordingly.
The trial court relied upon the Soldiers' and Sailors' Civil Relief Act of 1940, 50 U.S. C.A.Appendix § 501 et seq. Section 510, article I, thereof, sets forth the purpose of the act and reads as follows: 'In order to provide for, strengthen, and expedite the national defense under the emergent conditions which are threatening the peace and security of the United States and to enable the United States the more successfully to fulfill the requirements of the national defense, provision is hereby made to suspend enforcement of civil liabilities, in certain cases, of persons in the military service of the United States in order to enable such persons to devote their entire energy to the defense needs of the Nation, and to this end the following provisions are made for the temporary suspension of legal proceedings and transactions which may prejudice the civil rights of persons in such service during the period herein specified over which this Act remains in force.'
Section 521, article II, upon which the trial court definitely bases his action, reads as follows: 'At any stage thereof any action or proceeding in any court in which a person in military service is involved, either as plaintiff or defendant, during the period of such service or within sixty days thereafter may, in the discretion of the court in which it is pending, on its own motion, and shall, on application to it by such person or some person on his behalf, be stayed as provided in this Act, unless, in the opinion of the court, the ability of plaintiff to prosecute the action or the defendant to conduct his defense is not materially affected by reason of his military service.'
The trial court, holding that it was compulsory...
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