People ex rel. Murphy v. Field

• Decision Date: 02 June 1919
• Docket Number: 9576.
• Citation: 66 Colo. 367,181 P. 526
• Parties: PEOPLE ex rel. MURPHY v. FIELD.
• Court: Colorado Supreme Court

181 P. 526

66 Colo. 367

PEOPLE ex rel. MURPHY v. FIELD.

No. 9576.

Supreme Court of Colorado, En Banc.

June 2, 1919

Proceeding in quo warranto by the People of the State of Colorado, by Victor E. Keyes, Attorney General, upon the relation of William R. Murphy, against John E. Field. Judgment for relator.

Victor E. Keyes, Atty. Gen., and Charles Roach Deputy Atty. Gen. (Charles W. Waterman, of Denver, of counsel), for the People.

Milton Smith, Charles R. Brock, W. H. Ferguson, and Karl F. Crass all of Denver, for respondent.

SCOTT J.

This action is an original proceeding in quo warranto to determine the title to the office of member of the board of land commissioners of Colorado. The relator claims under and by virtue of an appointment by the Governor, confirmed by the Senate in compliance with the requirements of section 9, art. 9, of the Constitution. This provision of the Constitution was adopted as an amendment at the general election of 1910, and is as follows:

'Sec. 9. The state board of land commissioners shall be composed of three (3) persons to be appointed by the Governor, with the consent of the Senate, who shall have the direction, control and disposition of the public lands of the state under such regulations as are and may be prescribed by law, one of which persons shall at the time of his appointment be designated as president of the board and whose office shall expire on the second Tuesday of January, 1917, one of which persons shall at the time of his appointment be designated as register of the board and whose term of office shall expire on the second Tuesday of January, 1915, and the third member of said board shall at the time of his appointment be designated as the engineer of the board and shall always be professionally a civil engineer, who, for at least five (5) years, has been actively engaged in the practice of his profession and whose term of office shall expire on the second Tuesday of January, 1913; and the successor and successors of the first members of the board shall each be appointed for the terms of six (6) years. * * * The members of the board shall each receive a salary of three thousand dollars ($3,000) per annum until otherwise provided by law; but the salary of each member of this board is to be paid out of the income of the said state board of land commissioners.'

The respondent claims under and by virtue of section 13, art. 12, of the Constitution, adopted as an amendment at the general election of 1918, and known as the 'civil service amendmant,' and, in so far as applicable, is as follows:

'Appointments and employments in and promotions to offices and places of trust and employment in the classified civil service of the state shall be made according to merit and fitness, to be ascertained by competitive tests of competence, the person ascertained to be the most fit and of the highest excellence to be the first appointed. All appointees shall be qualified electors of the state of Colorado, except as to those offices or positions held by civil service commission to require special training and technical qualifications, in which case competitive tests need not be limited to qualified elections and may be held without the state.

'The classified civil service of the state shall comprise all appointive public officers and employés and the places which they hold, except the following: Judges of courts of record and one stenographer of each judge, one clerk for each court of record, persons appointed to perform judicial functions, receivers, jurors, members of boards or commissions appointed by the Governor and serving without pay, members of the state industrial commission, of the public utilities commission and of the state civil service commission, the Governor's private secretary and three confidential employés of his office, appointees to fill vacancies in elective offices, one deputy of each elective officer, the position involving the duties incident at present to the position of that deputy of the secretary of state, known as deputy commissioner of labor and the incumbent thereof, officers and teachers in educational institutions not reformatory or charitable in character, all attorneys at law serving as such, and the officers and employés of the General Assembly.'

The respondent was duly appointed by the Governor and confirmed by the Senate to fill an unexpired term expiring on the second Tuesday in January, 1919, and was holding under such appointment at the date of the adoption of the civil service amendment and at its promulgation, both of which occurred prior to the expiration of the term for which he was appointed.

The only question to be determined is whether or not the office of member of the state board of land commissioners is one embraced and included in the civil service amendment as being subject to the provisions thereof.

It has been frequently held by this court, and generally by all courts, that the Constitution, including all amendments thereto, must be construed as one instrument, and as a single enactment. So that for the purposes of this case we must consider the two constitutional provisions under consideration, together with all other provisions of the fundamental law, as having been originally written therein, and as stated in Dixon v. People, 53 Colo. 527, 127 P. 930:

'To reach a proper solution of the problem it is essential that we take the Constitution as it is, including every part thereof relating to the subject-matter under consideration, and construe the instrument as a whole, causing it, including the amendments thereto, to harmonize, giving to every word, as far as possible, its appropriate meaning and effect.'

So construed then, does the civil service provision change, modify, or repeal section 9, art. 9, or is it so repugnant to that articles as to justify the conclusion that the respondent is, and was intended to be, included within its provisions.

The civil service provision contains no repealing clause, and specific reference is nowhere made therein to the state board of land commissioners, nor to the members thereof.

Therefore, if it is to be held that the office of the respondent is included within the civil service provision, it must be because that article repeals section 9, art. 9, by implication, or that the latter article is so repugnant to the former that the two provisions may not be reconciled.

We have held it to be a universal rule that repeals by implication will not be favored, and that it is only in cases where a conflict clearly and unavoidably exists may this doctrine be invoked. In re Funding Indebtedness, 15 Colo. 430, 24 P. 877. We have further held that such repugnancy must appear to be so clear and positive that the two enactments cannot consistently stand together. Upon this point we said in Schwenke et al. v. Union Depot Co., 7 Colo. 512, 4 P. 905:

'The law does not favor repeals by implication; they will not be adjudged to follow, unless there is such a positive repugnancy that the two statutes cannot consistently stand together; the legislative intent to substitute the new for the old law must clearly appear;

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