People ex rel. Miller v. Johnson
| Decision Date | 23 June 1905 |
| Parties | PEOPLE ex rel. MILLER, Atty. Gen., v. JOHNSON. |
| Court | Colorado Supreme Court |
Rehearing Denied July 10, 1905.
Quo warranto by the people, on relation of N.C. Miller, Attorney General, against Henry V. Johnson, to oust respondent from the office of county judge of the city and county of Denver. Writ granted.
N.C. Miller, Atty Gen., and Henry J. Hersey, for petitioner.
J. C Starkweather, amicus curiae.
Sterling B. Toney, C. R. Brock, Milton Smith, Clay B. Whitford, Harvey Riddell, Samuel W. Belford, and George F. Dunklee, for respondent.
This information in quo warranto, filed by leave of court, by the people of the state of Colorado, on the relation of N.C Miller, the Attorney General of the state, charged that one Henry V. Johnson, a citizen of said state and a resident and qualified elector of the city and county of Denver therein did, on, to wit, the 1st day of June, 1904, without any warrant or authority of law, usurp and intrude himself into the office of county judge of the city and county of Denver and ever since has continued and still does continue to unlawfully usurp and intrude himself into said office of county judge of the city and county of Denver; that he, the said Henry V. Johnson, is now unlawfully holding a regular term of the county court of said city and county of Denver, and is still usurping and intruding into and unlawfully holding and exercising the functions of judge of the county court in said city and county of Denver, and called upon to answer by what warrant he claims to hold such office or exercise the powers, perform the duties, and receive the fees and emoluments thereof; and that he be ousted and excluded therefrom. In response to a rule to show cause, duly served, respondent filed his answer and return, wherefrom it appears, in substance, that he is a duly qualified elector in and for the city and county of Denver, and in every way qualified to hold the office of county judge of said city and county; that under and by virtue of article 20 of the Constitution of the state of Colorado, pursuant to an election ordered by ordinance of the city council of Denver, a special election was held at which members of a charter convention were elected, which charter convention framed a charter for the city and county of Denver in harmony with said article 20 of the Constitution; that on the 29th of March, 1904, said charter, so framed by said charter convention, was submitted to the qualified electors of the city and county of Denver, and by such qualified electors was approved, and became and was and is the charter of said city and county of Denver; that in and by said charter it was provided that the county court of the city and county of Denver should consist of two judges; that at the next city and county election two judges should be elected, one of whom should be for the short term; that the judge elected for the short term should, within 30 days after his election, qualify and enter upon the duties of his office and should hold such office until the second Monday of January, 1907; that the judge elected for the long term should enter upon the duties of his office on the second Tuesday of January, 1905, and hold office for a term of four years; that the judges of the county court should be elected, one every two years, each for a term of four years; that such judges should be elected at the same time and manner as other officers of the city and county of Denver, at the general city and county election next preceding the expiration of their respective terms of office; that, in case of vacancy occurring from any cause, the mayor, by and with the consent of the board of supervisors, should appoint a person possessing the qualifications herein provided for county judges, to act as such judge until his successor is duly elected and qualified; that said charter provided that a general city and county election should be held on the third Tuesday in May, being the 17th of May 1904, and every two years thereafter; that at the first city and county election there should be elected a mayor, auditor, assessor, treasurer, clerk, recorder, coroner, county superintendent of schools, two judges of the county court, 16 aldermen, 7 supervisors, 3 justices of the peace, 3 constables; that the terms of all elective officers shall commence on the first secular day of June following their election, and shall be four years and until their successors are elected and qualified; that at the election held May 17, 1904, respondent was elected to the office of county judge, and, within 30 days after such election, qualified and entered upon the duties of said office of county judge, and is now holding said office and discharging the duties thereof, pursuant to such election; denies that he did usurp and intrude himself into the office of county judge of the city and county of Denver, and avers that he holds the same and discharges the duties of said office under full warrant and authority of law, and by virtue of his election as hereinbefore stated. To this answer and return, the people filed a general demurrer, whereby the constitutionality of the charter provisions, relied upon by the respondent, is brought directly in issue.
This is one of eight cases, now pending in this court of like character, involving the title to the following county offices in the city and county of Denver, to wit, county judge, county assessor, county clerk and ex officio recorder, treasurer, constables, sheriff, county commissioners, and justices of the peace. All of these cases were argued orally and submitted at the same time, and all involve substantially the same questions, except that this case invoves the further question whether the charter convention was authorized to increase the number of county judges to two. In the consideration which the court has given these cases, all of the briefs and arguments filed by counsel, in all of the cases, and all authorities cited, have been thoroughly and exhaustively considered by the court. Respondents, in these cases, are represented by an array of eminent counsel all of whom have filed elaborate, exhaustive, and learned briefs and arguments, covering every conceivable phase of every question which might be presented to the consideration of the court. In a multitude of counsel there is wisdom, and necessarily a difference of opinion upon matters under consideration. If it should transpire that this opinion attempts to set forth the views of counsel as presented in the briefs and arguments filed, as we understand them, which do not coincide with the views of counsel reading the opinion, let not the opinion be criticised upon this account alone, until at least the reader has carefully read and analysed the 1500 pages of briefs and arguments filed.
It is the contention of the relator that the charter convention of the city and county of Denver, provided for by article 20, cannot legislate in any particular as to the county court, or the county judge, or any other office, officer, or matter, not of purely local or municipal concern; that the Constitution provides for one county judge in each county of the state, and requires that all laws relating to courts shall be general and of uniform operation throughout the state, and that the organization, jurisdiction, powers, proceedings, and practice of all the courts of the same class or grade, so far as regulated by law, shall be uniform (Const. art. 6,§§ 22, 28); that the charter provisions assuming to increase the number of county judges of the city and county of Denver, to change the time of election of the county judge and time of the beginning and ending of his term, and to legislate in any particular as to the county judge of the county court, are unconstitutional and void; that there is nothing in article 20 of the Constitution which shows an intention to change the scheme of government in this particular, and, if there were, it would be unconstitutional; and that there is nothing in article 20 which shows any intention to grant any power to the charter convention to supersede the provisions of the Constitution or general statutes, relating to the county or the state government, and therefore, if the charter convention has legislated or attempted to legislate upon any matter, which supersedes the provisions of the Constitution or general statutes, such legislation is unconstitutional and void.
In our opinion the contention of relator is fully sustained by the majority opinion of the court, in People v. Sours, 31 Colo. 369, 74 P. 167, 102 Am.St.Rep. 34, and in the opinion of the present Chief Justice specially concurring. At page 385 of 31 Colo., page 172 of 74 P. (102 Am.St.Rep. 34), Mr. Justice Steele, in delivering the majority opinion, says: ...
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