People ex rel. Inspector of Coal Mines v. Denman

• Decision Date: 10 June 1901
• Citation: 16 Colo.App. 337,65 P. 455
• Parties: PEOPLE ex rel. INSPECTOR OF COAL MINES v. DENMAN.
• Court: Colorado Court of Appeals

65 P. 455

16 Colo.App. 337

PEOPLE ex rel. INSPECTOR OF COAL MINES v. DENMAN.

Court of Appeals of Colorado

June 10, 1901

Error to district court, Arapahoe county.

Proceedings by the people, on relation of the inspector of coal mines against Henry Denman, to try title to the office of inspector of coal mines. From a judgment sustaining a demurrer to the complaint, complainant brings error. Reversed.

Lewis Rogers Yeaman, Booth M. Malone, Dist. Atty., and Yeaman &amp Gove, for plaintiff in error.

John T Bottom, for defendant in error.

THOMSON J.

This proceeding was brought to try the title to the office of inspector of coal mines for the state of Colorado, to which the relator claims to be rightfully entitled, but which, as he alleges, the defendant has usurped, and now unlawfully holds. A demurrer to the complaint was sustained, and, the relator declining to amend, judgment was entered against him. The complaint alleges the appointment of the relator by the governor to the office of inspector of coal mines for the state of Colorado, the confirmation of the appointment by the senate on the same day, and the subsequent qualification and entry into the possession of the office by the relator. It also avers that on the 9th day of February 1900, the governor addressed and caused to be delivered to the relator a communication, which, after enumerating certain acts and omissions of the relator, not in keeping with a proper discharge of his official duties, and notifying him that these constituted neglect of duty and malfeasance in office, concluded with an order revoking and annulling his commission as inspector of coal mines, and relieving him of his office; that on the last-named day the governor, by another order, appointed the defendant, Henry Denman, inspector of coal mines for the relator's unexpired term, and on the 12th day of the same month notified the secretary of state that he had removed the relator and appointed the defendant; and that on the following day the defendant filed his bond, took the oath required by law, and forcibly took possession of the office, with the books, papers, and other things pertaining thereto, excluding the relator therefrom, which possession he continues to hold.

By an act of the legislature approved February 24, 1883, it was provided that within four months of the passage of the act the judges of the district court should appoint four reputable coal miners, of known experience and practice at the time, and the governor should appoint one mining engineer, of like repute, experience, and practice at the time, and that these persons so appointed should constitute a board of five examiners, whose duty it should be to inquire into the character and qualifications of candidates for the office of inspector of mines; that they should certify to the governor, and file in the office of the secretary of state the names of all such applicants as any four of the examiners should find competent to fill the office; and that the governor should, from the names so certified, appoint the person possessing the best qualifications to be inspector of coal mines, whose commission should be for the term expiring January 1, 1887, or until his successor should be appointed, and confirmed by the senate. The act also provided that every four years from January 1, 1883, examiners should be appointed in the same manner, and perform the same duties, and from the names submitted by them the governor should appoint inspectors of mines. Gen.St.1883, p. 167, § 189. On the 8th day of April, 1885, an act amendatory of the foregoing act was approved, in which the provisions relating to the appointment of inspector of coal mines were displaced by the following: "On January 1st, A.D.1887, and every four years thereafter, the governor shall appoint one reputable mining engineer, of known ability, and shall notify the judges of four of the judicial districts of the state, within which coal mines are being operated, to each appoint one reputable coal miner, of known experience and practice, from their respective districts, and the five so appointed shall constitute a new board of examiners, whose duties, term of service, and compensation, shall be the same as those provided for by this section; and from the names that may be certified by them the governor shall appoint the inspector of mines provided for in this act." The following provision was also incorporated into the amendatory statute: "As often as vacancies in said office of inspector of mines shall occur, by death, resignation, or malfeasance in office, which shall be determined in the same manner...