People ex rel. Kellogg v. Fleming

• Decision Date: 29 February 1884
• Parties: PEOPLE ex rel. KELLOGG v. FLEMING and others.
• Court: Colorado Supreme Court

3 P. 70

7 Colo. 230

PEOPLE ex rel. KELLOGG v. FLEMING and others.

Supreme Court of Colorado

February 29, 1884

The act of February 11, 1883, purports to 'amend section 78 of chapter 'C' of the General Laws;' it does not however, amend that section at all, but goes on to make radical changes in other portions of the chapter, and affects subjects wholly foreign to those mentioned in that section. The title is entirely misleading; and the act not conforming to the above article of the constitution, is null and void.

The provision that certain officers shall be elected 'on the first Tuesday of April in each year, and hold office for two years,' is incapable of being enforced 'in every clause and provision,' and is too obscure to ascertain the design of its framers.

Where a statute is held void, a clause repealing 'all acts inconsistent with this act,' is also inoperative, there being nothing that can conflict with a void statute.

Information in the nature of quo warranto.

N F. Cleary, for relator.

BECK C.J.

An information in the nature of a quo warranto was filed in this court in the name of the people, upon the relation of William Kellogg, district attorney of the Fifth judicial district of this state, charging that the respondents are unlawfully holding certain city offices in the city of Leadville; that is to say, the said John D Fleming is unlawfully holding the office of mayor; the said W. W. Officer is unlawfully holding the office of city clerk; the said H. T. Sale is unlawfully holding the office of city attorney; and the said Edward Cuddihee is unlawfully holding the office of city marshal. Upon the filing of the information, a rule was entered requiring the respondents to appear upon a certain day and show by what warrant or authority they and each of them held their respective offices. Thereupon, a citation issued which was personally served upon the said Officer, Sale, and Cuddihee, but the said Fleming was not found. In respect to those served with the citation, their default to appear and answer the rule herein entered against them must be construed as an admission that the matters of fact charged in the information are true. The substance of the information is that said city officers are severally claiming to hold their respective offices for the term of two years from the sixteenth day of April, A. D. 1883, by virtue of an election held in said city in pursuance of an act of the legislature entitled 'An act to amend section 78 of chapter 'C' of the General Laws of the state of Colorado, entitled, 'Towns and Cities, and especially Cities of the Second Class,'' approved February 11, 1883, and that said act is believed to be unconstitutional.

The first objection to the act of February 11, 1883, is that the subject of the act is not sufficiently expressed in its title. Section 21, art. 5, of the constitution, is as follows:

'No bill except general appropriation bills shall be passed containing more than one subject, which shall be clearly expressed in its title; but, if any subject shall be embraced in any act which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be so expressed.'

All the information to be derived from an inspection of the title of this act is that it was proposed to amend a certain section of chapter 'C' of the General Laws. There is a chapter of the General Laws which is numbered 'C,' but it is not entitled ' Towns and Cities, and especially Cities of the Second Class,' nor is there any chapter in the volume so entitled. Chapter 'C' comprises three separate legislative acts, each bearing its appropriate legislative title, and the several sections of all said acts bearing their original numbers, in addition to the general number in the compilation. The title given by the compiler to the whole chapter is 'Towns and Cities.' The only act in this chapter which contains 78 sections is entitled 'An act in relation to municipal corporations.' Section 78 of this latter act is under the subdivision, 'Cities of the Second Class.' It is apparent that the title of the act in question is very defective in matters of description. But a more serious defect is that the subject of the proposed legislation was not only not clearly expressed in the title, but was not expressed at all.

The history and purpose of the constitutional requirement referred to is readily ascertained by consulting the numerous adjudications by courts of last resort upon similar constitutional provisions.

According to Judge COOLEY, the provision was designed to prevent the joining in the same bill subjects diverse in their natures, and having no necessary connection; also to prevent the insertion of clauses in a bill of which the title gives no intimation. People v. Mahaney, 13 Mich. 481. Judge GARDINER, of New York, says the purpose was that neither the members of the legislature nor the public should be misled by the title. Sun Mutual Ins. Co. v. The Mayor, 8 N.Y. 241.

Judge COLE, of Wisconsin, says the design and purpose of the provision was obviously to prevent the mischief of uniting together in the same bill various objects which had no necessary connection with each other, and in order to guard the legislature and community affected by the law against surprise and imposition. Durkee v. City of Janesville, 26 Wis. 697. In view of these citations, it is plain that the design of the constitutional provision, that no bill except general appropriation bills should be passed, containing more than one subject, which should be clearly expressed in its title, was wholly disregarded by the legislature in the present instance.

The only information in respect to the subject and extent of the legislation proposed, obtainable from the title of the act of February 11, 1883, was that it was proposed to amend said section 78. It is but rational to conclude from this notification that the proposed amendment would be germane to the subject-matter of the section to be amended. That section relates wholly to the duties and powers of mayors of cities of the second class. It is as follows:

'Sec. 78. The mayor of cities of the second class shall be the presiding officer of the city council, and shall vote when there is a tie, but not otherwise.'

In point of fact the subject-matter of the section is not amended at all, but re-enacted in substantially the same words. The amendments made were amendments to other portions of the act, entitled, 'An act in...