People ex rel. Metzger v. Watrous

• Decision Date: 11 February 1950
• Docket Number: No. 16371,16371
• Citation: 215 P.2d 344,121 Colo. 282
• Parties: PEOPLE et rel. METZGER, Attorney General, v. WATROUS.
• Court: Colorado Supreme Court

Page 344

215 P.2d 344

121 Colo. 282

PEOPLE et rel. METZGER, Attorney General, v. WATROUS.

No. 16371.

Supreme Court of Colorado, en Banc.

Feb. 11, 1950.

Dines, Dines & Holme, Robert E. More, Peter H. Holme, Jr., Denver, for respondent.

MOORE, Justice.

This is an original proceeding in the nature of quo warranto upon information of the Attorney General to try the right of respondent to occupy the office and exercise the powers, duties, and functions of State Highway Engineer of the State Highway Department. In the petition for issuance of the writ it is alleged that the respondent 'by reason of the facts and circumstances more fully set forth in the affidavit of your relator, attached hereto and made a part hereof, together with the exhibits thereunto attached, did on or about the 16th day of March, 1946, unlawfully usurp and hold, and unlawfully exercise the powers, duties and functions of the office of State Highway Engineer of the State Highway Department, and still unlawfully usurps and holds the said office and exercises the powers, duties and functions thereof, without any warrant, title or right whatsoever * * *.' In support of this charge relator filed his affidavit and certain exhibits. The respondent filed his answer and return to the rule to show cause, which issued on relator's petition, denying the existence of grounds for his removal. Respondent's answer was supported by affidavits and exhibits. The affidavits and exhibits of relator and respondent raise issues of law, since only the conclusions to be drawn from events and facts admitted are in dispute.

The cause is now before this court upon the motion of respondent for summary judgment.

Questions to be Determined

First: Should the respondent be ousted from office for the reason that at the time of his original examination for appointment five points were added to his grade under the veterans' preference provisions of the constitution?

It is undisputed that in determining the position of respondent upon the list of persons eligible for appointment, the respondent was elevated to first place by the addition to his grade of five points for military service under the provision of the so-called veterans' preference amendment, adopted November 7, 1944. This constitutional amendment provides inter alia that, 'Five points shall be added to the grades of candidates receiving a passing grade who served in the armed forces of the United States in times of war and who were honorably discharged therefrom * * *.' S.L. '45, p. 265.

Relator contends that respondent waived the benefit of this veterans' preference at the time he filed his application to take the civil service examination. It is clear that the printed form of application for examination was not changed to conform to the constitutional amendment above mentioned and contained questions wholly irrelevant to the rights of applicants to a veterans' preference under said amendment. The form of application for examination, as filled in and signed by Watrous, bearing upon the question under discussion, was as follows:

'17. Do you claim military preference? If so, were you engaged in the military service of the United States for at least six months at time of war? No/(Yes or no)

Army? 3 months/(Yes or no) Navy? (Yes or no) It what capacity?

Was your service in the United States or in a foreign country? United States

Give dates of your enlistment and discharge October 28, 1918 January 24, 1919.'

It is apparent that in section 17 of the form no space is provided for answer to the first question. By writing the word 'no' in the space following the inquiry as to whether military service extended over a period of at least six months, and by inserting the number of months of service in the space provided, respondent did nothing whatever to create a waiver, the essentials of which are, 'the voluntary abandonment or surrender, by a capable person, of a right known by him to exist, with the intent that such right shall be surrendered and such person forever deprived of its benefit.' United Commercial Travelers of America v. Boaz, 27 Colo.App. 423, 150 P. 822, 828. The questions, in the form presented, were confusing and no waiver can be based on the answer given by respondent. 'Waiver is the intentional abandonment of a known right, not a trick to catch one napping.' Millage v. Spahn, 115 Colo. 444, 175 P.2d 982, 984.

Moreover it appears without contradiction that respondent claimed the benefit of veterans' preference. He listed his period of military service, and submitted his honorable discharge in proof and in support thereof.

Our decision in the recent case of Perry v. O'Farrell, 120 Colo. ----, 212 P.2d 848, 853, is conclusive against the position of relator. In that case we stated: 'The commission was cognizant of the terms and mandates of the constitutional amendment. Theirs was the duty to comply with its mandates and the public, as well as veterans affected, had a right to assume that they would perform their duty. The commission had before it O'Farrell's honorable discharge, his application for reinstatement, his reinstatement, and should have been aware of the fact that he was entitled to a five-point credit upon the effective date of the amendment and should have, of its own motion, added the additional points.'

It follows that the respondent was entitled to the five-point award for military service. The question under discussion is answered in the negative.

Second: Should the respondent be ousted from office upon the alleged ground that he was not a licensed engineer when he took the civil service examination?

There is no dispute concerning the facts upon which relator bases his argument that the respondent lacked the status of a licensed engineer at the time of the examination. The facts are: That the respondent was granduated from the Colorado School of Mines in 1914, and was licensed to practice engineering within the State of Colorado January 26, 1920, pursuant to the requirements of the statute adopted in 1919. He complied with all statutory requirements concerning the payment of an annual license fee for continuance of his status of licensed engineer through the year 1933. From December 31, 1933, until June 15, 1945, he paid no renewal license fee. The examination of all applicants for the position, subsequently awarded to respondent, was completed April 13, 1945. On June 18, 1945, pursuant to provisions of the statute governing reinstatement of licensees to practice engineering, the respondent paid the statutory fee required for reinstatement. About ten months thereafter, and on March 16, 1946, he was appointed to the office of State Highway Engineer and has at all times since occupied that position. Prior to this appointment, the Civil Service Commission considered the question as to whether respondent was a 'licensed engineer' within the meaning of the statute setting up the qualifications for the position, and resolved the question in his favor. As hereinafter discussed under separate heading we are conclusively bound by the commission's finding on this point.

Section 104, chapter 143 '35 C.S.A., as amended by section 1, chapter 211, Session Laws of Colorado, 1945, page 571, provides, inter alia, the following: 'The person appointed must be at least thirty-five years old and have at least five years' practical experience in the construction and maintenance of public highways, and shall be a graduate and licensed engineer of at least ten years' general experience in executive engineering.' The term 'licensed engineer' as used in this statute has reference to original qualifications. It is self-evident that the legislature was dealing with qualifications rather than revenue in adopting this section. Payment of annual renewal fees has nothing to do with qualifications and when, as here, the only condition for reinstatement is the payment of a reinstatement fee, and where reinstatement was had ten months prior to appointment, it cannot successfully be contended that respondent was not a licensed engineer on the date of appointment. There is nothing in the law requiring that an applicant must be a 'licensed engineer' on the date of examination, or for any period prior thereto. The law states: 'The person appointed * * * shall be a graduate and licensed engineer'. Even though no consideration be given the fact that respondent became a licensed engineer in 1920, and paid all renewal fees through 1933, and assuming that the only qualification as a licensed engineer was that brought about by the reinstatement of June 18, 1945, the required status was present ten months prior to appointment.

In Neelley v. Farr, 61 Colo. 485, 158 P. 458, Ann.Cas. 1918A, 23, and Lipset v. Davis, 119 Colo. 335, 203 P.2d 730, we reached conclusions in somewhat analogous situations consistent with these views. The question under discussion is accordingly answered in the negative.

Third: Should the respondent be ousted from office upon the alleged ground that he did not have five years' practical experience in the construction and maintenance of public highways?

Relator argues that since the undisputed facts are that respondent claimed five years' experience in construction and maintenance of public highways during his employment with the U. S. Forest Service, which work was done during the period in which respondent paid no renewal license fees, that such experience could not supply the minimum requirements, because it was acquired at a time in which 'Watrous was not a licensed engineer.' It is further argued that the roads in connection with which Watrous gained this five years' experience were not 'public highways' within the meaning of the statute.

In disposing of the first of the above contentions we deem it sufficient to refer to the language of the statute. The statute does not require that five-years' experience in public highway construction and maintenance shall have been had while...