People v. Pickens

• Decision Date: 31 May 1932
• Docket Number: 13035.
• Parties: PEOPLE ex rel. McQUAID v. PICKENS.
• Court: Colorado Supreme Court

12 P.2d 349

91 Colo. 109

PEOPLE ex rel. McQUAID v. PICKENS.

No. 13035.

Supreme Court of Colorado, En Banc.

May 31, 1932

Error to District Court, City and County of Denver; Henley A Calvert, Judge.

Quo warranto by the People, on the relation of Denneth McQuaid against Alvin H. Pickens. Judgment for defendant, and plaintiff brings error.

Affirmed.

Vance R. Dittman, Jr., William Atha Mason, Lowell D. Hunt, and Jean S. Breitenstein, all of Denver, for plaintiff in error.

James D. Parriott and Frederick P. Cranston, both of Denver, and R C. Hecox, of Dallas, Tex., for defendant in error.

BURKE J.

Plaintiff in error is hereinafter referred to as McQuaid, defendant in error as Pickens, and the city and county of Denver as Denver,

Pickens was acting as municipal judge of Denver, and McQuaid, claiming there was neither such officer nor such officer, brought quo warranto to oust him. Judgment was for Pickens, and McQuaid brings error.

Pickens claims under an ordinance. There is no present charter provision creating the office. If there were, that it would be valid, is undisputed.

Amendment art. 20 of our State Constitution, adopted in 1902, created the present municipality of Denver, made it a 'Home-Rule City,' authorized its adoption of a charter as such, and granted it all authority over local and municipal matters which the General Assembly could confer. City of Denver v. Hallett, 34 Colo. 393, 398, 83 P. 1066. Section 2 thereof provides that the officers of Denver, their method of selection, jurisdiction, terms, duties, and qualifications, shall be as provided in the charter.

Section 6 of article 20 was amended in 1912. It extends the privileges of the article to all cities and towns of the state having a population of 2,000, authorizing them to adopt charters and organize as home-rule cities. It confers upon such a city or town all the powers set out in sections 1, 4 and 5, but says nothing about section 2. It further confers upon it all the 'powers necessary, requisite or proper for the government and administration of its local and municipal matters, including power to legislate upon, provide, regulate, conduct and control:

'a. The creation and terms of municipal officers, agencies and employments; the definition, regulation and alteration of the powers, duties, qualifications and terms or tenure of all muncipal officers, agents and employees;

'b. The creation of police courts; the definition and regulation of the jurisdiction, powers and duties thereof, and the election or appointment of police magistrates therefor;

'c. The creation of municipal courts; the definition and regulation of the jurisdiction, powers and duties thereof, and the election or appointment of the officers thereof; * * *

'h. The imposition, enforcement and collection of fines and penalties for the violation of any of the provisions of the charter, or of any ordinance adopted in pursuance of the charter.'

And finally concludes: 'The provisions of this section 6 shall apply to the city and county of Denver. This article shall be in all respects self-executing.'

Section 209 of the present Denver Charter (as amended in 1916) vests all legislative power of the city in a board of councilmen.

Ordinance No. 87 of 1931, adopted by the board of councilmen, creates the court over which Pickens presides, gives it jurisdiction over 'all cases arising under the ordinances of the City and County of Denver,' provides for the appointment, by the mayor, of a judge thereof, and fixes his term. July 11, 1931, Pickens was so appointed, qualified, and entered upon the discharge of his duties as municipal judge.

The Denver charter provides fot the appointment by the mayor of two justices of the peace, one of whom shall be designated by him to perform...