People v. Enlow

• Citation: 135 Colo. 249,310 P.2d 539
• Decision Date: 22 April 1957
• Docket Number: No. 18183,18183
• Parties: The PEOPLE of the State of Colorado, Plaintiff, W. Grant Chester, Intervener, v. Carl E. ENLOW and Arthur Wermuth, Defendants.
• Court: Supreme Court of Colorado

Page 539

310 P.2d 539

135 Colo. 249

The PEOPLE of the State of Colorado, Plaintiff W. Grant Chester, Intervener, v. Carl E. ENLOW and Arthur Wermuth, Defendants.

No. 18183.

Supreme Court of Colorado, En Banc.

April 22, 1957.

Bernard P. O'Kane, Lakewood, Carl Cline, Denver, for the People.

Hornbein & Hornbein, Roy O. Goldin, Denver, for Intervener.

Robinson & Curran, Lakewood, for defendant Carl E. Enlow.

Thomas J. Carney, Golden, Ira C. Rothgerber, Jr., Denver, for defendant Arthur Wermuth.

FRANTZ, Justice.

On January 11, 1957 the District Attorney for the First Judicial District filed an original proceeding in this court in the nature of quo warranto under Rules 106 and 116, R.C.P.Colo. Named as the defendant was Carl E. Enlow, the person who was then in possession and control of the office of the Sheriff of Jefferson County, Colorado. It was alleged in the complaint that a vacancy occurred in the office when Enlow was convicted of an infamous crime involving a violation of his official oath, and that such conviction automatically worked a divestiture of the authority and accoutrements of the office, notwithstanding which Enlow purported to act as Sheriff for the County.

Because the question thus presented was deemed publici juris, this court agreed to act, and in that behalf issued a rule to show cause to Enlow. The impact of the various functions and activities of the office on the public, all in the exercise of the prerogatives thereof and in the enforcement of the civil and criminal process of the courts, prompted us to accept the responsibility of original jurisdiction. Art. VI, Sec. 3, Constitution of Colorado; State ex rel. Sullivan v. Moore, 49 Ariz. 51, 64 P.2d 809. To refuse to hear and determine the matter at the earliest convenient date seemed against the best interests of the public, particularly since the longer Enlow held and exercised the prerogatives of the office, if the exercise thereof proved unwarranted, the more problems would multiply which might subsequently vex the courts.

Enlow had been elected in November 1954 to the office of Sheriff of Jefferson County, and qualified and assumed his duties in January 1955. In March 1956 Enlow was indicted by the federal grand jury. He was charged in two counts with federal income tax evasion for the years 1949 and 1950 in violation of Section 145 (b) of the Internal Revenue Code, 26 U.S.C. § 145(b). In each count it was alleged that Enlow made false and fraudulent tax returns in that he failed to report his full income for each of these years. Enlow was thus charged with violation of a federal law in the United States District Court for Colorado.

To the indictment Enlow pled not guilty; trial was had before a jury on the issues thus joined; and on June 27, 1956, he was found guilty on the first count and not guilty on the second. A sentence that he be imprisoned for three years and fined $500 was immediately imposed. From this sentence Enlow appealed to the United States Court of Appeals for the 10th Circuit. 239 F.2d 887. On January 2, 1957, said appellate court affirmed the judgment and sentence of the federal district court.

While these court proceedings were running their course, certain events were transpiring in the county affecting the office of Sheriff. Just prior to the imposition of the sentence upon Enlow, the Board of County Commissioners of Jefferson County considered a resolution demanding that Enlow tender his resignation. This resolution was defeated by a vote of two to one. On January 7, 1957, and before the decision of the Court of Appeals became final, the Board of County Commissioners as then constituted held its last meeting, and adopted a resolution appointing W. Grant Chester, the Intervener herein, to the office of Sheriff for Jefferson County. Two voted for the resolution, and the third abstained from voting. Enlow refused to surrender the office to Chester.

In the afternoon of January 11, 1957 and still at a time before the decision of the Court of Appeals became final, Enlow tendered his resignation to the Board of County Commissioners as newly constituted following the November 1956 election. Enlow's resignation was accepted immediately, and the Board thereupon appointed Arthur Wermuth, later made a party defendant herein, to succeed Enlow, and Wermuth has been in possession and control of the office, and functioning as Sheriff of the County since this appointment.

Despite the changing circumstances, the controversy continues; Enlow's resignation and the resultant action of the Board metamorphosed the original dispute in this court from charged usurpation of office by Enlow to a contest between Wermuth and Chester over who is rightfully and appropriately appointed to succeed Enlow. Notwithstanding the change in the cast of characters and the factual situation, the public nature of the problem remains and we proceed to its resolution.

C.R.S. '53, 35-1-5, ordains that in any of seven situations a county office becomes vacant. We are concerned with only two (the second and fifth), but illumination is shed on the construction to be given the pertinent parts by a consideration of the whole. The section provides that 'Every county office shall become vacant, on the happening of either of the following events, before the expiration of the term of office: (1) The death of the incumbent. (2) His resignation. (3) His removal. (4) His ceasing to be an inhabitant of the county for which he was elected or appointed. (5) His conviction of any infamous crime, or any offense involving a violation of his official oath. (6) His refusal or neglect to take his oath of office, or to give or renew his official bond, or to deposit such oath and bond within the time prescribed by law. (7) The decision of a competent tribunal, declaring void his election or appointment.'

In our view of the statute, a county office becomes vacant by operation of law when the incumbent is convicted of an infamous crime, or when he is convicted of any offense--whether felony or misdemeanor--, if it involves a violation of his official oath. People ex rel. Attorney General v. Laska, 101 Colo. 221, 72 P.2d 693. Stated otherwise, a conviction of either offense automatically causes a vacancy in the office. In re Obergfell, 239 N.Y. 48, 145 N.E. 323; State ex rel. De Concini v. Sullivan, 66 Ariz. 348, 188 P.2d 592; State ex rel. Hunter v. Jurgensen, 135 Neb. 136, 280 N.W. 886.

Any other construction would do violence to plain, unequivocal language. Indeed, so simple, direct and integrated is the language of C.R.S. '53, 35-1-5, that there is no room for interpretation as to when a vacancy occurs. The happening of the event fixes the time and fulfilment of the vacancy. The mingling of situations which ordinarily would give rise to vacancies ipso facto with others that do not necessarily create vacancies ipso facto, without difference of treatment in the statute, is significant. Thus, among the listed events creating a vacancy in office are three which by their very nature result in termination of office-holding, and the statutory declaration that the office becomes vacant upon the happening thereof seems almost surplusage. Reference is made to the provisions relating to the death of an incumbent, or his resignation, or his removal; the occurrence of any of these events establishes instanter a vacancy. To hold that the death of an incumbent, or his resignation, or his removal effects an immediate vacancy in the office but that the same is not true as to an officer convicted of either of the described offenses would result in a strained, unnatural and illogical construction, in view of the language employed in the statute which makes no such distinction.

Section 145(b) of the federal Internal Revenue Code provides that:

'Any person required under this title to collect, account for, and pay over any tax imposed by this title who willfully fails to collect or truthfully account for and pay over such tax, and any person who willfully attempts in any manner to evade or defeat any tax imposed by this title or the payment thereof, shall, in addition to other penalties provided by law, be guilty of a felony and, upon conviction thereof, be fined not more than $10,000, or imprisoned for not more than five years, or both, together with the costs of prosecution.'

If Enlow was convicted of violating this section, and if such amounts to conviction of an infamous crime or an offense involving a violation of his official oath, within the purview of C.R.S. '53, 35-1-5, the office of Sheriff of Jefferson County became vacant by operation of law on the date of such conviction.

Was Enlow convicted of violating said Revenue Act prior to January 11, 1957, the date of his resignation, and if he was, was he convicted of an infamous crime or of an offense involving a violation of his official oath? These are the important questions which must be answered. If either question is answered in the negative, Wermuth is the properly appointed Sheriff. If both questions are answered in the affirmative, Chester is the properly appointed Sheriff. Important to a consideration of the question of conviction vel non is the fact that Enlow in his answer here denies guilt of the matter charged against him in the federal court.

What meaning should be attached to the term 'conviction' as used in C.R.S. '53 35-1-5(5)? To define the word is no easy task. Its meaning in other situations has run the gamut of proceedings from a plea of guilty or the verdict of a jury, People v. Brown, 87 Colo. 261, 286 P. 859, to the last expression of this court, Read v. Read, 119 Colo. 278, 202 P.2d 953. For the variety of definitions given the word, see 13 C.J. 903 to 910, 18 C.J.S., pp. 97 to 99.

Chester contends that the verdict of the jury constitutes the 'conviction' of Enlow, and relies upon Commonwealth v. Lockwood, 109 Mass. 323, 12 Am.Rep. 699; Quintard v. Knoedler, 53 Conn. 485, 2 A....