People v. Osborne

• Decision Date: 31 October 1884
• Citation: 4 P. 1074,7 Colo. 605
• Parties: PEOPLE v. OSBORNE.
• Court: Colorado Supreme Court

4 P. 1074

7 Colo. 605

PEOPLE v. OSBORNE.

Supreme Court of Colorado

October 31, 1884

Error to the district court of Jefferson county.

D F. Urmy, Atty. Gen., Markham, Patterson &amp Thomas, and J. H. Brown, for plaintiffs in error.

A J. Sampson and A. H. De France, for defendant in error.

BECK C.J.

The legislature of 1881 passed an act establishing a state institution to be styled the 'State Industrial School.' The second section of the act provides:

'Sec. 2. The general supervision and government of said industrial school shall be vested in board of control, who shall be appointed by the governor, by and with the advice and consent of the senate, the members of which board shall hold their offices for the respective terms of two, four, and six years from the first day of March, A. D. 1881, and until his successor is appointed and qualified; and whenever any vacancy shall occur in said board, by death, resignation, or otherwise, the governor shall fill the same by appointment and the appointee shall hold only for the unexpired term of the person whose place he is appointed to fill.' Sess. Laws Colo. 1881, p. 132.

The act was approved on the twelfth day of February, 1881, and on the next day, the legislature being in session, the governor of the state, by and with the consent of the senate, appointed one A. L. Emeigh a member of the board of control of said industrial school for the term of two years, to hold and occupy said office from the first day of March, 1881. The appointee qualified and performed the duties of the office up to the thirteenth day of November, 1882, when he resigned, and the defendant in error, Osborne, was appointed by the governor to fill the vacancy. The term of office to which the said Emeigh had been appointed expired on the first day of March, 1883, but, through oversight, no nomination for a successor to the then incumbent, Osborne, was sent to the senate, which convened in the month of January, 1883, consequently no successor was appointed at that session. After the adjournment of the general assembly, to-wit, on the fourteenth day of June, the governor appointed the relator, C.

P. Butler, a member of said board of control, in place of said Osborne, on the theory that the term of the latter had expired, and that a vacancy existed by reason of the failure of the governor and senate to appoint a successor. Butler qualified, and demanded the office, but Osborne refused to surrender the possession thereof, and the present action is brought to test the question, who is entitled to exercise the functions of said office? A demurrer was filed to the complaint, alleging that it did not contain facts sufficient to constitute a cause of action. The district court sustained the demurrer, and dismissed the complaint.

The pleadings present two principal questions for our consideration, viz.: (1) Do the provisions of the constitution concerning appointments to office, and appointments to fill vacancies in office, control in the present case, or do the provisions of the statute establishing the industrial school control such appointments? (2) Did a vacancy exist in the office in question at the time of the appointment of the relator, C. P. Butler?

Section 6 of article 4 of the constitution is as follows:

'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, and may remove any such officer for incompetency, neglect of duty, or malfeasance in office. If, during the recess of the senate, a vacancy occur in any such office, the governor shall appoint some fit person to discharge the duties thereof until the next meeting of the senate, when he shall nominate some person to fill such office. If the office of auditor of state state treasurer, secretary of state, attorney general, or superintendent of public instruction shall be vacated by death, resignation, or otherwise, it shall be the duty of the governor to fill the same by appointment, and the appointee shall hold his office until his successor shall be elected and qualified in such manner as may be provided by law. The senate, in deliberating upon executive nominations, may sit with closed doors, but, in acting upon nominations, they shall sit with open doors, and the vote shall be taken by ayes and noes, which shall be entered upon the journal.'

A comparison of the foregoing provisions of the constitution with those of section 2, supra, of the statute shows that, while an officer appointed to fill a vacancy by virtue of the provisions of the statute holds the office for the unexpired term of his predecessor, one appointed under the provisions of the constitution holds only until the next meeting of the senate.

It is evident, then, that if the offices in question had been created by the constitution, the statutory provisions for the filling of vacancies would be in conflict with the constitutional provisions on the same subject, and, to the extent of the variance, the statute would be void. But these offices were not created by the constitution, but by the statute; nor can it be said that the constitution has provided either for original appointments to fill the offices or for appointments to fill vacancies in said offices, since both events are ' otherwise provided for' by the statute. This being so, the fundamental principle obtains that the legislature has unlimited power in regard to legislation, save only as to restrictions imposed by the constitution. Thorpe v. Rutland & B. R. Co. 27 Vt. 140, 142; Cooley, Const. Lim. 107.

There being no constitutional restrictions imposed in this instance, it was entirely competent for the legislature to provide, as it has done, the manner of making original appointments, the terms of office, how all vacancies shall be filled, and when the term of an incumbent appointed to fill a vacancy shall expire. This view of the subject is in harmony with the rule announced by this court in the case of People v. Rucker, 5 Colo. 455.

We proceed now to the second inquiry: Did a vacancy exist in the office in question at the time of the appointment of Butler? This inquiry involves a construction of section 2 of the statute establishing the industrial school. This section provides that the members of the board of control shall be appointed by the governor, by and with the advice and consent of the senate, during the session of the general assembly, the appointees to hold their offices for the respective terms of two, four, and six years from the first day of March, 1881, ' and until their successors shall be appointed and qualified.' This provision covered the case of Emeigh, who was appointed for the term of two years.

The following provision covers the case of Osborne, his...