People ex rel. Jones v. Carver

• Decision Date: 22 October 1894
• Citation: 38 P. 332,5 Colo.App. 156
• Parties: PEOPLE ex rel. JONES v. CARVER.
• Court: Colorado Court of Appeals

38 P. 332

5 Colo.App. 156

PEOPLE ex rel. JONES v. CARVER.

Court of Appeals of Colorado

October 22, 1894

Error to district court, Douglass county.

Proceeding by the people of the state of Colorado, on the relation of William W. Jones, against William E. Carver to try title to office. Judgment for defendant. Relator brings error. Reversed.

William Dillon, for plaintiff in error.

W.H Davis and Geo. C. Norris, for defendant in error.

THOMSON J.

This is a proceeding under the statute to try the title to the office of general road overseer of the county of Douglass. At its January meeting, 1892, held on the 7th day of January, being the first Monday of the month, the board of county commissioners, by resolution, appointed the relator, William W. Jones, general road overseer of the county, who thereupon filed with the clerk of the county a bond in the sum required by the board, conditioned as required by law, which was approved by the board. The board which made the appointment was the outgoing board. At the preceding general election a new commissioner had been elected to succeed the one whose term of office was about to expire; and at a special meeting of the commissioners elect called for the purpose of organizing them into a new board and held on the 12th day of January, 1892, a resolution was adopted removing the relator from the office, and appointing in his stead the defendant, who thereupon filed with the clerk a bond, which was approved by the board, and took possession of the office, expelling the relator. The defendant had judgment, from which the relator has prosecuted error.

The law under which the relator was appointed is found in the act concerning roads and highways, approved April 13, 1891 (Sess.Laws 1891, p. 303). That act provides for the division by the board of county commissioners of their counties into suitable road districts, as in their judgment will best subserve the interests of the people of the county; and further, that, at their January meeting, the county commissioners in each county shall, by resolution, appoint a general road overseer for the county, who, before the expiration of his term, may be removed by the board for reasons satisfactory to them; that, before entering upon the duties of his office, he shall file with the clerk of the county wherein he is appointed a bond in such sum as the board of county commissioners may require, with good and sufficient sureties, to be approved by the board, conditioned for the faithful performance of his duties, etc.; that it shall be his duty to exercise a general supervision of all the public roads, highways, and bridges in the county, and by and with the advice and consent of the board of county commissioners, to appoint such deputy road overseers as the board of county commissioners may, by resolution, authorize him to appoint, who shall hold their office at the pleasure of the board of county commissioners, and shall exercise the powers of general road overseer within their respective districts, under the direction and control of the general road overseer. Prior to the passage of that act, the law required counties to be divided by the boards of commissioners into road districts, in each of which a road overseer should be elected annually, in the same manner as district and precinct officers, who should hold his office for one year, or until his successor should be duly qualified. Sess.Laws 1889, p. 330. The regular office of a county commissioner commences on the second Tuesday of January, after his election. Gen.St.1883, § 1160. The statute further provides that each board of county commissioners shall meet at the county seat on the first Monday in January, April, July, and October, in each year, and at such other times as in the opinion of the board the public interests may require (Id. § 531), and, at the first meeting after each annual election, shall choose one of their number chairman, who shall preside at their meetings during the year, if present (Id. § 543). The January meeting, occurring on the first Monday of January, must therefore be held by the old board, because the term of the new board has not yet commenced, and it is at this meeting that the law requires the appointment to be made. We cannot concede the position of counsel that this appointment by the old board was premature, because the terms of the district officers elected the preceding year had not expired, and because it was not the intention of the law to commit to the old board the appointment of an officer to act under their successors. The office of district overseer was statutory, and it is competent for the legislature to abolish an office which it has created; and under the act of 1891, upon the appointment, at the January meeting, of a general road overseer and of the deputies provided for to take the place of the district road overseers, the office of district overseer became defunct. There is no room for a construction of the law. It carries its meaning...