People ex rel. Wade v. Downen, 14691.

• Decision Date: 16 September 1940
• Docket Number: 14691.
• Citation: 106 Colo. 557,108 P.2d 224
• Parties: PEOPLE ex rel. WADE v. DOWNEN.
• Court: Colorado Supreme Court

108 P.2d 224

106 Colo. 557

PEOPLE ex rel. WADE v. DOWNEN.

No. 14691.

Supreme Court of Colorado, En Banc.

September 16, 1940

Rehearing Denied Dec. 9, 1940.

Error to District Court, Pueblo County; Harry Leddy, Judge.

Proceeding in quo warranto by the People of the State of Colorado, on the relation of James L. Wade, against Thomas J. Downen. To review an adverse judgment, the relator brings error.

Reversed.

BAKKE J., dissenting.

Arthur C. Gordon, of Lamar, and Arthur H. Laws, of Denver, for plaintiff in error.

Langdon & Barbrick, of Pueblo, for defendant in error.

YOUNG Justice.

A proceeding in quo warranto on the relation of James L. Wade was instituted in the district court of Pueblo county charging that the respondent, Thomas J. Downen, without any warrant or authority of law had intruded into, usurped, and was unlawfully holding and attempting to exercise the office of a member of the real estate brokers board and to perform unlawfully the duties incident thereto. Issue was joined by respondent upon the court's order to show cause why the relief prayed for in the petition should not be granted. A trial to the court resulted in written findings for respondent which both parties apparently assume and which we shall assume, constitute a final judgment in the case. The relator prosecutes a writ of error challenging the correctness of the district court's findings and judgment.

The facts were stipulated, and briefly are as follows: Wade, the relator, asserted his right to the office in question by virtue of an appointment thereto on April 22, 1939, by the governor of the state of Colorado, and Downen, the respondent, asserted his right to retain the office upon which he had entered by virtue of an appointment by the secretary of state March 20, 1939. If the appointive power to fill the office resides in the secretary of state the judgment is correct and should be affirmed. If it resides in the governor it is erroneous and should be reversed. This was the sole issue Before the district court and is the only one presented here for determination. It is raised by appropriate assignments of error. Other assignments point out certain provisions of the Constitution which it is contended will be violated if the judgment is permitted to stand. These are not here set forth because in our view of the case the issue may be resolved on other than constitutional grounds.

The real estate brokers board was created by an act of the legislature in 1925, the same being chapter 147, page 423, of the 1925 Session Laws. Section 3 thereof was as follows 'There shall be a Board of Three members appointed by the Governor which shall assist and advise said Secretary of State in the administration of this Act. This Board shall be known as the Real Estate Brokers Board and shall consist of real estate brokers who have had not less than Ten years experience in the real estate business in Colorado. The Governor shall appoint one member for a term of One year, One member for a term of Two years, and One member for a term of Three years. Upon the expiration of the term of office of any member the Governor shall appoint a member for a term of Three years. Members of the Board shall serve without salary but shall be entitled to actual expenses for each day of active service. No license shall be issued until the application for the license shall have been reported upon by a majority of the Real Estate Brokers Board. No license shall be suspended or revoked until said Brokers Board shall have made its majority recommendation to the Secretary of State.' By chapter 149 of the Session Laws of 1929, page 529, section 3, supra, was amended. As amended it now appears as section 30 of chapter 15, '35 C.S.A., and is as follows:

'There shall be a board of three members appointed by the governor which board shall assist and advise said secretary of state in the administration of this subdivision. This board shall be known as the real estate brokers board and shall consist of real estate brokers who have had not less than ten years' experience in the real estate business in Colorado. The members of the board now in office appointed by virtue of the subdivision hereby amended shall continue to hold office for the term for which they were appointed unless they sooner resign, are removed, die or their office becomes vacant for any other reason. Members of the board appointed hereafter shall hold office for a period of three years. Upon the death, resignation, removal or otherwise of any member of the board the governor shall appoint a member to fill out the unexpired term. 'Each member of this board shall be allowed a salary of ten dollars ($10.00) per day and his actual expenses for each day of active service.

'The said board shall conduct or cause to be conducted examination to determine the competency of applicants for license. No license shall be issued until the application for the license shall have been reported upon favorably by a majority of the real estate brokers board to the secretary of state. No license shall be suspended or revoked until said brokers shall have made its majority recommendation to the secretary of state.'

In 1933 an act was passed known as the Administrative Code of 1933, which appears as chapter 37, page 205, of the 1933 Session Laws, and as chapter 3, '35 C.S.A. The provisions of this act pertinent to the present litigation are designated by their section numbers as they appear in chapter 3 of '35 C.S.A., and are as follows:

'§ 5. (a) The chief executive officers of administrative departments of the state government created by this chapter shall have charge and general supervision of their respective departments, and shall exercise such powers and perform such duties as are vested by this chapter in the respective departments, except where detailed matters of policy are expressly conferred by law to any subordinate officer in the respective administrative departments.

'(b) The officers, assistants and employees of the departments created by this chapter shall be under the immediate supervision, direction and control of the heads of the respective departments, and shall perform such duties as shall be prescribed.'

'§ 6. Except as hereinafter provided, such officers, assistants and employees as may be necessary in each department shall be appointed by the chief executive officer of such department, subject to the approval of the executive council, in conformity with the provisions of article XII, section 13 of the constitution of Colorado, and the laws enacted in accordance therewith.'

Article XII, section 13, of the Colorado Constitution relates to civil service.

'§ 15. The department of state shall consist of the following offices and divisions:

'1. Division of administration, the head of which shall be the secretary of state. This division shall include the office of the secretary of state, which, except as otherwise expressly provided in this chapter, shall continue as now organized and existing.

'2. The division of registrations. This division shall consist of the following examining boards, which shall continue as now organized and existing, except as otherwise expressly provided in this chapter; provided, that all examining boards shall be furnished with quarters in the capitol building, the museum building, or the state office building, and shall be required to pay into the general revenue fund of the state, out of the fees and other revenues collected by them, such monthly or annual charges for rental, heat, light and telephone service, as the executive council shall determine; * * *

'o. Real estate brokers board. * * *'

The sole power of appointment of the members of the real estate brokers board was expressly conferred by section 30 of chapter 15, '35 C.S.A., which is a part of the act creating the board, upon the governor. This is conceded by respondent. Unless the law conferring the power has been repealed it is still the law of the state and the governor possesses the power of appointment. It is not expressly repealed by the Administrative Code Bill of 1933. This is conceded by the defendant in error. If it is repealed at all it is by implication. It would seem scarcely necessary to repeat the rule we have so often announced that repeals by implication are not favored, and that it is only where there is a manifest inconsistency or conflict between a later and earlier act, that a repeal by implication will be held to have occurred. Among the cases announcing this rule are the following: In re Funding of County Indebtedness, 15 Colo. 421, 24 P. 877; Board of Commissioners v Davis, 94 Colo. 330, 30 P.2d 266; Nelson v. Nelson, 72 Colo. 20, 209 P. 810. Such being...