People ex rel Hershey v. McNichols

• Decision Date: 20 June 1932
• Docket Number: 12650.
• Citation: 91 Colo. 141,13 P.2d 266
• Parties: PEOPLE ex rel. HERSHEY v. McNICHOLS.
• Court: Colorado Supreme Court

13 P.2d 266

91 Colo. 141

PEOPLE ex rel. HERSHEY v. McNICHOLS.

No. 12650.

Supreme Court of Colorado, En Banc.

June 20, 1932

Error to District Court, City and County of Denver; Charles C Sackmann, Judge.

Proceeding by the People of the State of Colorado on the relation of Harold R. Hershey for a writ of mandamus directed to William H. McNichols, substituted for George D. Begole as auditor of the City and County of Denver. To review a judgment dismissing the action, plaintiff brings error.

Reversed and remanded with directions.

Hawkins & Hawkins, of Denver, for plaintiff in error.

Thomas H. Gibson, George Hetherington, Charles H. Haines, and Frank L. Hays, all of Denver, for defendant in error.

BUTLER J.

Harold R. Hershey sought, by mandamus, to compel the audit of his claim against the city and county of Denver. An alternative writ was issued directed to George D. Begole, as auditor. A demurrer to the writ was sustained and the action was dismissed. After the writ of error was issued, W. H. McNichols became auditor and, as such, was substituted for Begole as defendant in error.

On September 29, 1929, the state board of health appointed Hershey local registrar of vital statistics for the Denver registration district. On January 6, 1930, the state registrar, pursuant to the provisions of section 20 of the act of 1907 (C. L. § 989), hereinafter quoted, issued his certificate to the effect that, for the quarter ending December 31, 1929, $536.75 was due Hershey for his services, 'after the approval of the auditing officials' of Denver. The certificate was presented to Begole for audit. Begole rejected the claim for the sole reason that there was no liability on the part of the city and county of Denver to pay for Hershey's services. The alternative writ states that Begole refused to audit and consider the verity of the claim and to allow or reject it as a result of such audit and consideration.

1. Is mandamus the proper remedy?

Courts will not, by mandamus, direct the manner in which the discretion of an officer shall be exercised; nor is such relief sought in this case. Courts, however, will direct an officer to proceed and exercise the discretion vested in him by law. In rejecting the claim, Begole did not act in the exercise of his discretion, but took the position that the claim was illegal, and that for that reason he had no discretion to approve or reject it, but was bound by section 139 of the Denver charter to withhold his approval. That section imposes upon him the duty to 'see that * * * no * * * money [is] disbursed * * * contrary to law or ordinance.' In such circumstances, it cannot be said that there was an audit of the claim. The refusal to approve a demand, on the ground of want of lawful authority to approve it, amounts to a refusal to act upon it. People ex rel. v. Board of Supervisors of City and County of San Francisco, 28 Cal. 429; Chipman v. Wayne County Board of Auditors, 127 Mich. 490, 86 N.W. 1024; Dufton v. Daniels, 190 Cal. 577, 213 P. 949; The King v. Justices of Kent, 14 East, 395. And see the discussion in Hull v. Oneida County Supervisors, 19 Johns. (N.Y.) 259, 10 Am.Dec. 223, and Matter of Ryan, 6 Misc. 478, 27 N.Y.S. 169.

If the Legislature has the power to impose upon the city and county of Denver liability to pay for the services of a local registrar of vital statistics appointed by the state board of health, the trial court should have overruled the demurrer, and, if Begole then had elected to stand upon his demurrer, the court should have awarded a peremptory writ of mandamus. If, however, the Legislature has no such power, the judgment should be affirmed, for there can be no audit within the meaning of the law where the auditor has no legal power to allow the claim.

2. Has the Legislature the power to impose such liability upon the city and county of Denver?

In 1907 the Legislature passed an act (Sess. Laws 1907, c. 112, p. 238, C. L. c. 29 [section 970 et seq.]) entitled 'An Act to provide for the registration of all births and deaths and the issuance of burial or removal permits; to establish registration districts and a central bureau of vital statistics; to provide for the preservation of a record of vital statistics. * * *' The provisions of the act that are material here are as follows: The state board of health is given charge of the state system of registration of births and deaths; is required to prepare methods and blanks for obtaining and preserving records; is required to insure faithful registration in the several local districts and in the central bureau of vital statistics; and is required to appoint a local registrar of vital statistics for each district, except where other officials are officiating as registrars of births and deaths under local ordinances, in which event such officials continue to act as registrars, subject to the provisions of the act and the rules and regulations of the state registrar. The secretary of that board is made state registrar of vital statistics, and, as such, is charged with the efficient execution of the provisions of the act throughout the state, and is given supervisory power over local registrars. The state is divided into registration districts. 'Each city, incorporated town, and county exclusive of such cities or incorporated towns as may be situated within its boundaries, shall constitute a primary registration district.' There are elaborate provisions for the collection and preservation of data concerning births and deaths. The local registrar is required to make and retain copies of all birth and death certificates registered by him, and transmit the original certificates to the state registrar. Before the body of a deceased person can be buried or otherwise disposed of, a permit must be obtained from the local registrar. In case of death from a disease held to be infectious, contagious, or communicable and dangerous to the public health, no such permit may be granted except under conditions prescribed by the state and local boards of health. Copies of records of births and deaths, certified by the state registrar, are made prima facie evidence of the facts appearing therein. Section 20 of the act (C. L. § 989) provides: 'That each local registrar shall be entitled to be paid the sum of twenty-five cents for each birth and each death certificate properly and completely made out and registered with him, and correctly copied and duly returned by him to the state registrar, as required by this act; Provided, That in cities, incorporated towns or counties, in which the clerk, health officer, or other official acting as registrar, receives a fixed salary, in lieu of fees, no further compensation shall be paid for the duties required by this act. And in case no births or no deaths were registered, during any month, the local registrar shall be entitled to be paid the sum of twenty-five cents for each report to that effect, promptly made in accordance with this act. All amounts payable to registrars or subregistrars under the provisions of this section shall be paid by the treasurer of the incorporated town, city or county in which the registration district is situated upon certification of the state registrar of vital statistics and after approval of the proper auditing officials of such incorporated town, city or county. And the state registrar shall quarterly certify to the treasurers of the several towns, cities or counties the number of births and deaths registered, with the names of the local registrars, and the amounts due each at the rates fixed herein.' Any violation of the act is made a misdemeanor.

Article 20 of the state Constitution gave to the people of the city and county of Denver exclusive control in matters of local concern only. After the adoption of that article, the city and county, as a municipality, continued to be, as the city was Before, an agency of the state for the purpose of government, and 'as much amenable to state control in all matters of a public, as distinguished from matters of a local, character, as are other municipalities.' Keefe v. People, 37 Colo. 317, 87 P. 791, 793, 8 L.R.A. (N. S.) 131; Mauff v. People, 52 Colo. 562, 123 P. 101; Denver v. Tihen, 77 Colo. 212, 235 P. 777; Denver v. Bossie, 83 Colo. 329, 266 P. 214. The matters dealt with in the act of 1907, supra, are not of local concern only; they are of general public importance. The records required to be kept are such as will be useful in the administration of the laws concerning public health, elections, wills, descent of property, marriage, guardian and ward, adoption, apprentices, crimes, juvenile delinquency, child labor, motor vehicles, and other laws. Certified copies of the records are made prima facie evidence of facts, the proof of which may be absolutely essential to the just administration of those laws.

The act tends directly to promote the public health, safety, and welfare, and is a valid exercise of the police power. It operates in all parts of the state, including Denver and other 'home rule' cities. See a discussion of the Tennessee Vital Statistics Act in State v. Norvell, 137 Tenn. 82, 191 S.W. 536, L.R.A. 1917D, 586. See, also Robinson v. Hamilton, 60 Iowa 134, 14 N.W. 202, 46 Am.Rep. 63. In this state we have no decision construing the act in question, but the discussions in the following cases are helpful: Keefe v. People, 37 Colo. 317, 87 P. 791, 8 L.R.A. (N. S.) 131 (eight hour law); Mauff v. People, 52 Colo. 562, 123 P. 101 (election law; registration committee); Denver v. Bossie, 83 Colo. 329, 266 P. 214 (act concerning use of Colorado...