People, ex rel. Walker v. Higgins
| Decision Date | 07 July 1919 |
| Docket Number | 9607. |
| Parties | PEOPLE ex rel. WALKER v. HIGGINS. |
| Court | Colorado Supreme Court |
Original proceeding in nature of quo warranto by the People of the State of Colorado, on the relation of Alex Walker, against J P. Higgins. On demurrer to the petition. Demurrer overruled.
Victor E. Keyes, Atty. Gen., George A. Carlson, of Denver, W. O. Peterson, of Pueblo, and Norton Montgomery, of Denver, for petitioner.
Milton Smith, Charles R. Brock, W. H. Ferguson, and Floyd F Walpole, all of Denver, for respondent.
This is an original proceeding in the nature of quo warranto. The respondent is the incumbent of the office of water commissioner of water district No. 2. His term of office expired May 6, 1919. The relator has been appointed by his excellency, the present Governor, to the same position. The respondent refuses to surrender the office, and claims that under section 13 of article 12 of the Constitution of Colorado, adopted at the November election, 1918 (see Laws 1919, p. 341), he is entitled to retain it.
The relator demurs to the respondent's answer, which sets up this claim, and the question is whether the claim is valid. So much of said section as is necessary to consider is as follows:
'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.'
And the following:
'All persons holding positions in the classified service as herein defined when this section takes effect shall retain their positions until removed under the provisions of the laws enacted in pursuance hereof.'
It is argued for respondent----
(1) That the literal terms of the section include the water commissioner, because he is an 'appointive public officer'; and that is true, but we believe that the words 'civil service of the state' would ordinarily be understood to include only officers of the state, and we must give them that meaning.
(2) That the exceptions indicate that other officers than state officers are included, but these exceptions can be explained by the supposition that the attempt was made to make it clear that deputy clerks of courts of record and instructors in reformatory and charitable institutions, etc., were included. We must conclude, therefore, that the civil service of the state embraces officers and employés of the state only.
Is a water commissioner an officer of the state? The statute provides that the water commissioner shall be appointed by the Governor from names recommended by the county commissioners of the county or counties which comprise the territory of the district. The office is therefore an appointive office. It is not within any of the exceptions. The question then is: Is the office of water commissioner within the 'civil service of the state'?
The arguments in favor are as follows: (1) That he is appointed by the Governor. (2) That he is appointed directly by authority of the laws of the state. (3) That he is controlled entirely by state officials, his superiors. (4) That the office is a part of the system of the state for executing the irrigation laws of the state. (5) That his duty is to execute the state laws, including laws for the preservation of the peace.
On the other hand, it is claimed that the office is not a state office because: (1) The water commissioner is really appointed by the county commissioners. (2) That his jurisdiction is not coextensive with the state. (3) His duties are purely local and of local concern. (4) He is paid by the locality, not by the state. (5) Under all former civil service laws he has been appointed by the Governor, without regard to those laws.
Nearly every one of the points made by either side has been held or stated to be of weight, and some of controlling force, in determining whether an office was a state office; but the authorities are in hopeless confusion upon the definition of a state office. The decision is made to depend, now on one point and now on another, and the results are various and inconsistent. For example, the Missouri Supreme Court holds that a constable is a state officer. State v. McKee, 69 Mo. 508. And this case said that a sheriff and clerk of court of record are also state officers, because the law which created the office is of state extent; that the deputy sheriff of the city and county of St. Louis is not a state officer (State v. Bus, 135 Mo. 325, 36 S.W. 636, 33 L.R.A. 616), within the meaning of the section of their Constitution which prohibits a representative to the Legislature from taking office, because that section clearly classifies the offices 'by territory and jurisdiction.' The state officers are those whose jurisdiction extends throughout the state. State v. Spencer, 91 Mo. 206, 3 S.W. 410; State v. Dillon, 90 Mo. 229, 2 S.W. 417. Yet in State v. Mason, 153 Mo. 43, 54 S.W. 524, it was held that police commissioners of St. Louis were state officers, and it was said that policemen were also.
In Michigan it is held that the mayor of Detroit, who is made a conservator of the peace, holds office 'under the state,' and it is there made to appear that, if he is appointed directly by state authority, that has some weight in determining whether he is such. Attorney General v. Detroit, 112 Mich. 145, 70 N.W. 450, 37 L.R.A. 211. Yet it is held that a state treasurer is not an officer 'in this state.' State v. Wilmington, 3 Har. (Del.) 312.
In New York the assessor and tax collector of a town are not municipal officers or agents of the town in the conduct of their offices, because for such purpose the town is not a corporation but a----
in these respects are 'administrative, and not in any sense corporate functions or duties.' Lorillard v. Monroe, 11 N.Y. 394, 62 Am.Dec. 120.
Their duties in no respect concern the strictly corporate interests of the town.
In New Hampshire it is held that a representative in the Legislature is a state officer. Morril v. Haines, 2 N.H. 246, 249; Ricker's Petition, 66 N.H. 207, 29 A. 559, 24 L.R.A. 740. But in Colorado it is said that he is not. In re Speakership, 15 Colo. 520, 25 P. 707, 11 L.R.A. 241.
The confusion of these authorities might be demonstrated further, but it would be useless. It is enough to say that, while they are doubtless right under the laws of their respective states, as authorities they do not aid us, nor do they give us much aid by their reasoning, for there is hardly one point upon which any case is based that in some other case is not said to be either immaterial or insufficient. It is our duty, however, to give respectful and careful attention to the Colorado cases.
In the case of People v. Curley, 5 Colo. 412, the question was whether the respondent lawfully held the office of police judge of Leadville. The charter of Leadville provided for a police judge, but the Legislature had made no attempt to fix his power. The city had passed an ordinance giving him the powers of a justice of the peace. It was held that this could not be done, and he was ousted; and this was done upon the theory and for the reason that 'the administration of justice, the preservation of the public peace, and the protection of the rights of the citizen, although confided to local agencies, are essentially matters of public...
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