People ex rel. Livesay v. Wright

• Decision Date: 01 December 1881
• Citation: 6 Colo. 92
• Parties: THE PEOPLE EX REL. LIVESAY v. WRIGHT.
• Court: Colorado Supreme Court

6 Colo. 92

THE PEOPLE EX REL. LIVESAY v. WRIGHT.

Supreme Court of Colorado

December, 1881

The ATTORNEY GENERAL, Messrs. MARKHAM and PATTERSON and Mr. J McD. LIVESAY, for the people.

Mr ALPHEUS WRIGHT, pro se.

ELBERT C. J.

This is an information in the nature of a quo warranto. The relator Livesay claims the office of district attorney for the first judicial district by virtue of an election to that office at the general election held November 8, 1881, and presents his certificate of election, signed and sealed by the secretary of state. The defendant Wright claims the office by virtue of his appointment by C. C. Carpenter, judge of the first district, to fill a vacancy occasioned by the resignation of Harper M. Orahood, elected district attorney in 1879 for the term of three years, and exhibits a duly certified copy of his said appointment.

By reason of this appointment the defendant asserts title to the office for the unexpired term of Orahood, that is to say until the general election in November, 1882.

The validity of this claim will depend upon the construction to be given to section 29, article VI, of the constitution which is as follows:

* * * 'Vacancies occurring in any of the offices provided for in this article shall be filled by appointment as follows: of judges of the supreme and district courts, by the governor; of district attorneys, by the judge of the court of the district for which such attorney was elected; and of all other judicial officers, by the board of county commissioners of the county wherein the vacancy occurs.'

'Judges of the supreme, district and county courts, appointed under the provisions of this section, shall hold office until the next general election, and until their successors elected thereat shall be duly qualified.' General Laws, p. 132.

This section is an amendment framed and submitted by the legislature, and adopted by the people, in lieu of section 29, article VI, of the constitution as originally adopted.

The repealed section is as follows: * * * 'Vacancies in elective offices shall be filled by election, but where the unexpired terms does not exceed one year, the vacancy shall be filled by appointment as follows: of judges of the supreme and district courts, by the governor; of district attorneys, by the judge of the court to which the office appertains; and of all other judicial officers, by the board of county commissioners of the county where the vacancy occurs.'

Under this repealed section, whenever a vacancy occurred in any elective judicial office, and the unexpired term exceeded one year, it became necessary to call and hold a special election to fill the vacancy. The chief, if not the only object of the amendment, was to obviate the expense and inconvenience of such special elections.

If we compare the repealed and substituted sections, we find: (1) As to the appointing power there is no change; the governor, district judge and county commissioners exercising the appointing power in the same class of cases in both sections. (2) As to the mode of filling vacancies, the rule of the repealed section was that vacancies in all elective offices should be filled by election, the only exception being where the unexpired term did not exceed one year. The rule of the substituted section is that 'vacancies in any of the offices provided for in this article shall be filled by appointment.' (3) As to the 'holding' of an appointee to fill a vacancy, the rule of the repealed section was that the appointee held for the unexpired term; but appointments being limited to unexpired terms that did not exceed one year, it in effect limited the 'holding' of all appointees until the next general election. The provision of the substituted section is, that 'judges of the supreme, district and county courts, appointed under the provisions of this section, shall hold office until the next general election, and until their successors elected thereat shall be duly qualified.'

Touching the 'holding' of one appointed by the district judge to fill a vacancy in the office of district attorney, or of one appointed by the board of county commissioners to fill a vacancy, when by the section the board is empowered to appoint, the substituted section is silent.

Having repealed a section which, in effect, limited the 'holding' of all appointees to fill vacancies in judicial offices 'until the next general election,' and having in the substituted section re-enacted the rule only as to 'judges of the supreme, district and county courts appointed to fill vacancies,' an implication arises of no little force, of a legislative intention that appointed officers not enumerated should hold for the unexpired term.

In support of this implication, which is the one contended for by the defendant, we have the familiar maxim, expressio unius est exclusio alterius.

It must be remembered, however, that this maxim is not of universal application in the construction of statutes. The legislative intention is to be taken according to the necessity of the matter, and according to that which is consonant to reason and sound discretion. Broom's Leg. Max. *664; Town of Trinidad v. Simpson, 5 Col. 65. It is simply a rule for arriving at legislative intent, and...