People ex rel. Moore v. Perkins

• Decision Date: 03 November 1913
• Citation: 137 P. 55,56 Colo. 17
• Parties: PEOPLE ex rel. MOORE v. PERKINS et al.
• Court: Colorado Supreme Court

137 P. 55

56 Colo. 17

PEOPLE ex rel. MOORE v. PERKINS et al.

Supreme Court of Colorado, En Banc.

November 3, 1913

Rehearing Denied Dec. 1, 1913.

Error to District Court, City and County of Denver; John H Denison, Judge.

Quo warranto by the People on relation of Marcellus F. Moore against J. M. Perkins and others. Writ denied, and relator brings error. Affirmed.

C. H. Redmond and McKnight & Henry, all of Denver for plaintiff in error.

I. N Stevens, John A. Rush, James A. Marsh, Paul Knowles, and William R. Kennedy, all of Denver, for defendants in error.

HILL J.

This is an action in quo warranto in the name of the people on relation of Marcellus F. Moore. Its object is to test the title of the defendants in error to the offices of commissioners of the city and county of Denver. By this method it is sought to have declared void the enactments which purport to create the so-called commission form of government and the nonpartisan system of election for this city and county.

The trial court sustained the validity of these enactments, as well as the validity of the election of the defendants in error as such commissioners under the nonparitisan system of elections provided for therein. There is no dispute concerning the facts. They disclose that a charter had been framed and was adopted by the people of the city and county of Denver in March, 1904, in conformity with the provisions of article 20 of the state Constitution. This charter provides for a board of supervisors consisting of 7 members, to be elected at large, also a board of aldermen of not less than 16 nor more than 21, to be elected by wards. It also provides for the election of a mayor and certain other executive and judicial officers, and for the appointment of certain other executive officers. In other words, it provides for a complete system of municipal government by what has heretofore been recognized as the mayor form, consisting of two legislative bodies, with a power of veto resting in the mayor, etc. The plaintiff in error, prior to the attempted change, was an alderman duly qualified and the term for which he was elected has not expired.

Upon February 14, 1913, a special election was held within and for the city and county of Denver, at which were submitted separately by prior initiation of certain electors in the manner, so far as details are concerned, as provided for by the charter, two certain propositions in writing. Each was designated therein 'Amendment to the charter of the city and county of Denver.' One of these propositions, by repeal of certain sections of the old charter, the amendment of others, and the adding of new sections, purports to make certain changes in the form of government from the mayor form so called, as above described, to the commission form so called, with five commissioners to take the place of the mayor and legislative council. They are also to perform certain other duties. The other purports, by the same method, to enact what is commonly known as the nonpartisan system of election. This includes what is called the preferential system of voting. The result of the election was for the adoption of each of these designated amendments, and the regular procedure provided for by the then charter appears to have been followed in declaring them adopted. Upon May 20th, following, as provided for in one of the amendments, another election was held. This was conducted under what is termed the nonpartisan system of elections, as authorized in the other amendment. At this election, the defendants in error, except James F. Markey, were, in the manner provided by this amendment, duly elected to the offices of commissioners. Mr. Markey was elected to the office of auditor, which had been created by one of the amendments. They all qualified and assumed to enter upon the duties of their respective offices. This resulted in the ouster of the plaintiff in error and certain other officers then holding certain offices in existence under certain sections of the old charter, which sections the latter enactments purport to amend or repeal.

It is claimed that these so-called amendments are invalid for the reasons following: First, that they constitute a new or revised charter, which could only be submitted or adopted through the medium of a charter convention; second, that if they are amendments, the manner of submission to the electors was such as to afford no opportunity to the voters of lawfully exercising their right of franchise, and that they were consequently not legally adopted; third, that the call for the election at which they were submitted was not published, as required by the Constitution. If these enactments are amendments to the charter which was in existence at the time of their purported adoption, it becomes unnecessary to consider the question of how a new charter can be secured, for which reason we will first consider the question of whether they are amendments.

The authority for the adoption of the charter which these enactments purport to amend, as well as the manner in which it can be amended, is to be found in article 20 of our state Constitution. This court has repeatedly held that this article is a grant of power to the inhabitants of the city and county of Denver, and that it authorizes them to do what it specifically states they can do, and such other matters as must be necessarily implied from the language used.

The material parts of section 4 and 5 necessary to be considered in this controversy read as follows:

'Sec. 4. The charter and ordinances of the city of Denver as the same shall exist when this amendment takes effect, shall, for the time being only, and as far as applicable, be the charter and ordinances of the city and county of Denver; but the people of the city and county of Denver are hereby vested with and they shall always have the exclusive power in the making, altering, revising or amending their charter and, within ten days after the proclamation of the Governor announcing the adoption of this amendment the council of the city and county of Denver shall, by ordinance, call a special election, to be conducted as provided by law, of the qualified electors in said city and county of Denver, for the election of twenty-one taxpayers who shall have been qualified electors within the limits thereof for at least five years, who shall constitute a charter convention to frame a charter for said city and county in harmony with this amendment. Immediately upon completion, the charter so framed, with a prefatory synopsis, shall be signed by the officers and members of the convention and delivered to the clerk of said city and county who shall publish the same in full, with his official certification, in the official newspaper of said city and county, three times, and a week apart, the first publication being with the call for a special election, at which the qualified electors of said city and county shall by vote express their approval or rejection of the said charter. If the said charter shall be approved by a majority of those voting thereon, then two copies thereof (together with the vote for and against) duly certified by the said clerk, shall, within ten days after such vote is taken, be filed with the secretary of state, and shall thereupon become and be the charter of the city and county of Denver. But if the said charter be rejected, then, within thirty days thereafter, twenty-one members of a new charter convention shall be elected at a special election to be called as above in said city and county, and they shall proceed as above to frame a charter, which shall in like manner and to the like end be published and submitted to a vote of said voters for their approval or rejection. If again rejected, the procedure herein designated shall be repeated (each special election for members of a new charter convention being within thirty days after each rejection) until a charter is finally approved by a majority of those voting thereon, and certified (together with the vote for and against) to the secretary of state as aforesaid, whereupon it shall become the charter of the said city and county of Denver and shall become the organic law thereof, and supersede any existing charters and amendments thereof.

'Sec. 5. The citizens of the city and county of Denver shall have the exclusive power to amend their charter or to adopt a new charter, or to adopt any measure as herein provided. It shall be competent for qualified electors in number not less than five per cent. of the next preceding gubernatorial vote in said city and county to petition the council for any measure, or charter amendment, or for a charter convention. The council shall submit the same to a vote of the qualified electors at the next general election not held within thirty days after such petition is filed; whenever such petition is signed by qualified electors in number not less than ten per cent. of the next preceding gubernatorial vote in said city and county, with a request for a special election, the council shall submit it at a special election to be held not less than thirty nor more than sixty days from the date of filing the petition; provided, that any question so submitted at a special election shall not again be submitted at a special election within two years thereafter. In submitting any such charter, charter amendment or measure, any alternative article or proposition may be presented for the choice of the voters, and may be voted on separately without prejudice to others. Whenever the question of a charter convention is carried by a majority of those voting thereon, a charter convention shall be called through a special election ordinance as provided in section four (4) hereof, and the same shall be

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