People ex rel. Walker v. Capp

• Decision Date: 01 May 1916
• Docket Number: 8803.
• Parties: PEOPLE ex rel. WALKER, Dist. Atty., v. CAPP.
• Court: Colorado Supreme Court

158 P. 143

61 Colo. 396

PEOPLE ex rel. WALKER, Dist. Atty., v. CAPP.

No. 8803.

Supreme Court of Colorado, En Banc.

May 1, 1916

Rehearing Denied June 5, 1916.

Error to District Court, Chaffee County; Charles Cavender, Judge.

Quo warranto by the People, on the relation of Gilbert A. Walker District Attorney for the Eleventh Judicial District of the State, against M. P. Capp. To review a judgment of dismissal relator brings error. Judgment affirmed.

Gilbert A. Walker and Frank Swancara, both of Buena Vista, and Joseph W. Clarke, of Leadville, for plaintiff in error.

George K. Hartenstein and H. L. McGinnis, both of Buena Vista, for defendant in error.

BAILEY J.

The action is in quo warranto, to try title to the office of warden of the state reformatory at Buena Vista. The defendant Capp was, upon competitive examination in which he stood highest, appointed such warden on February 1st, 1914, under the civil service law of 1907 as amended by the initiated bill of 1912. Thereafter he duly qualified and was in possession of the office when this suit was commenced, July 12th, 1915, but his appointment was never confirmed by the state senate. On the theory that there was a vacancy in the office on the convening of the legislature, because Capp's appointment was in vacation and had not been confirmed, Shaw, the claimant, on April 10th, 1915, was named for the position by the governor, and the state senate on the same day in regular session duly confirmed the appointment.

The answer to the complaint contains six separate and special defenses, to each of which demurrers were filed by the relator. Only two of these special defenses need be considered, namely, the second and fourth, demurrers to which were overruled. The relator elected to stand by his demurrers, a judgment of dismissal was entered, and he brings the case here for review on error.

The second separate and special defense alleged in substance that the defendant Capp took a competitive civil service examination; that he was duly certified by the Civil Service Commission as the person standing highest on the most appropriate eligible list for said office; that pursuant to such certification he was duly appointed; that he had never been removed from said office; that no charges of any kind had been preferred against him; and that his appointment under the civil service law was during good behavior and until removed for cause. The fourth separate and special defense alleged in substance that the claimant, Shaw, at an examination by the Civil Service Commission held to create an eligible list from which to fill the office in question, received a rating of only 60%, and that such rating did not entitle him to be, nor has he ever been, certified as a person eligible to be appointed to such office.

Plaintiff's first contention is that the civil service law of 1907, as amended in 1912, is unconstitutional in so far as it relates to appointments of heads of departments or heads of state institutions. The contention is based upon the assumption that the law deprives the governor of discretion, because only one name is certified, the claim being that this law conflicts with section 1 of article 4 of the constitution, which provides, among other things, that 'the officers of the executive department * * * shall perform such duties as are prescribed by this constitution or by law.' The argument is that the power of appointment necessarily involves the exercise of discretion, and that if the discretion of the governor in making the appointments is taken away he is thereby deprived of the power to perform the duties prescribed by the constitution.

This proposition is sound when applied to constitutional officers, but in this case counsel have fallen into error in their conclusion because they have failed to distinguish between officers provided by the constitution and officers created by statute. There is no provision in the constitution giving the governor power to appoint the warden of the reformatory, or that requires the legislature to confer upon the governor the power to appoint that officer. The legislature was therefore free to confer that power upon some other official or board, as it might see fit, and because it originally conferred the power upon the governor is no reason why that body may not either qualify that power, or, if so disposed, take it away entirely. Had the constitution created the office of warden, or had it provided that the governor should appoint the warden when the legislature created the office, it may be conceded that then the governor's discretion could not be interfered with by the legislature. Hence it is plain that the statutory provision here assailed in no sense contravenes the constitutional provision in question.

Neither is it true, as argued, that section 6 of article 4 of the constitution controls as to the appointment of the warden of the reformatory. This section reads:

'The governor shall nominate, and by and with the consent of the senate, appoint all officers whose offices are established by this constitution, or which may be created by law, and whose appointment or election is not otherwise provided for. * * *'

The appointment of the warden of the state reformatory is otherwise provided for, and under the decision of the appellate courts of this state,--People v. Osborne, 7 Colo. 605, 4 P. 1074; Benson v. People, 10 Colo.App. 175, 50 P. 212; Brown v. People, 11 Colo. 109, 17 P. 104; Trimble v. People, 19 Colo. 187, 34 P. 981, 41 Am.St.Rep. 236,--the statute which provides for the manner of appointment of such officers is controlling. The following extract from 29 Cyc., page 1379, is also applicable:

'Where the power of appointment is not vested in an authority by the constitution there would seem to be no question with regard to the power of the legislature to impose limitations upon the discretion of the appointing officer, or to authorize some other body, such as a state or local civil service commission, to impose such limitations. It would also seem proper under such conditions for the legislature to provide that the appointment should be made as a result of the selection of the one standing highest on a list made up of the successful contestants at competitive examinations.'

In volume 5 of Ruling Case Law, cited by relator in his brief, page 612, this is said:

'* * * But a civil service law would be unconstitutional if it provided for or permitted the certification of only one name upon requisition to the commission for the names of those eligible for appointment in filing a particular vacancy, where the power of appointment of public officers and employees is vested by the constitution of a state in designated officials.'

Our constitution does not confer upon any officer the power to appoint a warden of the reformatory, hence it rested solely with the...