People ex rel. Tucker v. Rucker

• Decision Date: 01 December 1880
• Citation: 5 Colo. 455
• Parties: THE PEOPLE EX REL. TUCKER v. RUCKER.
• Court: Colorado Supreme Court

5 Colo. 455

THE PEOPLE EX REL. TUCKER v. RUCKER.

Supreme Court of Colorado

December, 1880

Messrs CLINTON REED, A. S. WESTON & J. B. BISSELL, for relator.

Messrs C. S. THOMAS, M. L. RICE & H. B. JOHNSON, for respondent.

ELBERT C. J.

This is an information in the nature of a quo warranto, and is submitted on demurrer to the petition. The controversy arises under an act passed by the last General Assembly creating and establishing a criminal court in Lake county.

Warrant for the act is found in Sec. 24, Art. VI of the Constitution 'The General Assembly shall have power to create and establish a criminal court in each county having a population exceeding fifteen thousand, which court may have concurrent jurisdiction with the district court in all criminal cases not capital; the terms of such courts to be as provided by law.'

The first section of the act establishes in the county of Lake a criminal court, to be called 'the criminal court of Lake county.'

The second section provides that 'The judge of said court shall possess the qualifications prescribed by law for judges of the district court; that he shall be appointed by the governor by and with the consent and advice of the Senate also that all vacancies occurring during the recess of the Senate may be filled by appointment by the governor.'

The act was approved March 4, 1881, after the adjournment of the Assembly. On the same day the governor appointed Henry A. Day judge of the court, who qualified upon the 5th of March. Thereafter, and on the 7th of March, the county commissioners of Lake county, appointed A. W. Rucker, the respondent, judge of said court, who also qualified.

To the petition showing these facts, two grounds of demurrer are stated:

First. That under the constitution and laws of the State, the appointment of criminal judge by the governor was null and void.

Second. That under and by virtue of the constitution and laws of the State, the board of county commissioners of the county of Lake had full power and authority to appoint defendant to said office.

This calls in question the constitutionality of the act of the General Assembly, which, the respondent claims, violates two distinct and separate constitutional provisions, to wit: See 29, Art. VI (as amended), and Sec. 9, Art. XIV. They will be given in full when we come to consider them.

Before entering into the inquiry as to the constitutionality of the act in question, a recurrence to, and clear understanding of, two leading propositions will aid in clearing the way to correct conclusions.

(1) Touching the powers of the General Assembly, it must be remembered that, when the people by their constitution created that body, and declared that the legislative power should be vested therein, they conferred the full and complete power as it existed and rested in themselves, subject only to the restraints and limitations of their own constitution and the Constitution of the United States. Cooley Con. Lim. 87.

Chief Justice DENIO says: 'The people, in framing the Constitution, committed to the legislature the whole lawmaking power of the State, which they did not expressly or impliedly withhold. Plenary powers in the legislature for all purposes of civil government is the rule. A prohibition to exercise a particular power is an exception. In inquiring, therefore, whether a particular statute is constitutional, it is for those who question its validity to show that it is forbidden.

I do not mean that the power must be expressly inhibited. * * *

Every positive direction contains an implication against everything contrary to it, or which would frustrate or disappoint the purpose of the provision, the frame of the government, the grant of legislative power itself, the organization of the executive authority, the erection of the principal courts of justice, create implied limitations upon the law-making authority as strong as though a negative was expressed in each instance; but, independently of these restraints, expressed or implied, every subject within the scope of civil government is liable to be dealt with by the legislature.' People v. Draper, 15 N.Y. 543.

(2) Touching the relation which the judicial department sustains to the legislative, it must be remembered that they are co-ordinate departments of the government, of equal dignity. Each is alike superior in the exercise of its proper function. 'If an act of the legislature is held void, it is not because the judges have any control over the legislative power, but because the act is forbidden by the Constitution, and the Constitution must be enforced as the paramount law.' (Cooley Con. Lim. 160.) It is nevertheless apparent in such a case, that the decision of a co-ordinate department is indirectly overruled. Accordingly, courts have uniformly held, that while the duty in a proper case can not be declined, the power is to be exercised with caution and reluctance.

Mr. Sedgewick thus states the doctrine: 'The leading rule in regard to the judicial construction of constitutional provisions is a wise and sound one, which declares that in cases of doubt, every possible presumption and intendment will be made in favor of the constitutionality of the act in question, and that the courts will only interfere in case of clear and unquestioned violation of the fundamental law. It has been repeatedly said that the presumption is that every State statute, the objects and provisions of which are among the acknowledged powers of legislation, is valid and constitutional, and such presumption is not to be overcome unless the contrary is clearly demonstrated.' Sedgewick Stat. and Com. Law, 409.

These well-settled propositions of legislative power and judicial practice will be found to simplify the inquiry as we advance.

Counsel for the respondent, in their argument, challenge the constitutionality of the act in question upon two grounds: (1) That under the constitution the office of criminal judge must be elective, not appointive. (2) That in either case the power to fill vacancies in the office could not be vested in the executive, as by the terms of the constitution it is vested in the board of county commissioners.

It would, perhaps, be sufficient for the purposes of this case to determine the last point only. In view, however, of the public interest, as well as the interests of the parties, we consider both. Less than this might result in the necessity for another action.

Whether judicial positions should be filled by election or appointment, has long been a matter of much controvery. It is a question upon which great contrariety of opinion exists, and upon each side of which the ablest pens have been employed.

It would be difficult to believe that any convention of delegates convened for the purpose of framing a constitution for a new State would adopt either the elective or appointive system without a contest. Any adoption of one or the other system could scarcely be casual or accidental, but the result of deliberation and debate.

In this view counsel for the respondents presented a most able and ingenious argument, to the effect that there is sufficient in the constitution to justify the inference of a declaration by the people in favor of an exclusively elective judiciary.

To ascertain the will of the people in respect to their judiciary, we turn to that subdivision of their constitution. There, if anywhere, it is fair to expect to find it declared.

It is not contended that there is any provision in express terms declaring all judicial officers elective.

Judges of the Supreme Court, judges of the district courts, judges of the county courts, district attorneys and justices of the peace, are all made elective in express terms, but here the constitution ceases to speak upon the subject. Criminal courts and police magistrates are provided for, but whether they are to be elected or appointed the constitution does not say, unless by implication.

The last clause in section 29 of this article is as follows: 'Judges of the Supreme, district and county courts appointed under the provisions of this section, to fill vacancies, shall hold office until the next general election, and until their successors elected thereat shall be duly qualified.'

Had the Constitution failed to provide elsewhere for the election or appointment of the Supreme, district and county judges, there would have been found in the language of this provision concerning vacancies, a necessary implication that they were to be elected. It would be a necessary implication, because the constitutional provision could only be operative by their being elected.

If the term 'county courts,' as used in this provision, is to be regarded as a general term, including the criminal court as well as the county court, so-called, then this implication attaches to it, and it must be held as an elective office. We are satisfied, however, that the term 'county court' as here used, was not intended to designate or include the criminal court. The criminal court may be in a certain sense a county court, but such is not its constitutional name.

Sections 22 and 23 of this article establish county courts; provide for the election of a county judge in each county, who shall be judge of the county court; declare them courts of record, and prescribe their jurisdiction under this distinctive name, title and designation. This distinguishes it as 'the county court' of the constitution, and fixes with certainty the courts intended in the 29th section. Having a distinct meaning, and designating a distinct court in sections 22 and 23, we cannot by any rule of interpretation assign it another meaning and make it include another court in section 29.

Counsel for respondent cite ...