Post Printing & Publishing Co. v. Shafroth

Decision Date06 May 1912
PartiesPOST PRINTING & PUBLISHING CO. et al. v. SHAFROTH, Governor, et al.
CourtColorado Supreme Court

Rehearing Denied June 3, 1912.

Error to District Court, City and County of Denver; Greeley W Whitford, Judge.

Action by the Post Printing & Publishing Company and others against John F. Shafroth, as Governor of the State of Colorado, and others. Judgment for defendants, and plaintiffs bring error. Affirmed.

John T Bottom, of Denver (Milnor E. Gleaves, of Denver, of counsel) for plaintiffs in error.

Benjamin Griffith, Atty. Gen., Henry J. Hersey, F. A. Williams, H. N. Hawkins, and William B. Tebbetts, all of Denver, and Dugan & Brayton, of Pueblo (Pershing & Titsworth, of Denver, of counsel), for defendants in error.

HILL, J.

The Seventeenth General Assembly submitted to a vote of the people an amendment to section 3 of article 11 of the Constitution, which, as expressed by its title, was: '* * * To provide for the creation of a bonded indebtedness on behalf of the state to an amount not exceeding two million one hundred and fifteen thousand dollars, for the purpose of funding outstanding warrants of the state, and to provide for the issue and payment of said bonds.' Session Laws, 1909, p. 315. The state board of canvassers canvassed and certified the result of such election, which disclosed that the amendment had been adopted. Thereafter, this suit was instituted by the plaintiffs in error, one being a Colorado corporation, the other two, resident electors of the state, freehold taxpayers, and owners of an outstanding unpaid warrant issued during one of the years named in the constitutional amendment and being one of the warrants which evidently was intended, at the option of the holder, to be taken care of in the manner provided by this amendment. The suit is brought not alone upon behalf of the plaintiffs in error, but in the interest of all corporations and individuals similarly situated. The complaint shows that the executive officers of the state, some of the defendants below, constituted the state board of canvassers, and as such canvassed the vote cast for and against this constitutional amendment as required therein; that the canvass showed it had been adopted; that certain of the other defendants, as executive officers of the state, had, prior to the institution of the suit, organized as commanded by the act, into a debt-funding board, and were about to enter upon such duties, as provided by the amendment. The complaint sets forth sundry general allegations pertaining to frauds and irregularities in the election sufficient to change the result, with the further statement that the plaintiffs have much detail information regarding frauds and irregularities in the canvass of the votes in different precincts in the different counties and the canvass of the votes as returned from the different precincts by the county board of canvassers in the different counties, etc., which the plaintiffs ask leave to set forth at length in a supplemental complaint or bill of particulars, should it not be determined that the act was void. Thereafter, by supplemental complaint, the plaintiffs were allowed to set forth their allegations of fraud, etc., pertaining to said election; some of which, upon motion, were stricken and some were answered by denials, etc. The theory upon which the complaint is drafted, evidently, is to have tested in one suit three or four different methods of attack upon the validity of the constitutional amendment and certain provisions therein; also, a contest of the election itself, in that it prays: First, for a restraining order to prevent the debt-funding board from considering and determining the amount which should fairly or equitably be paid upon any of the warrants mentioned in the act, and from making and filing with the Auditor of State any statement pertaining thereto, and to prevent the officers authorized from issuing any bonds in accordance with the mandates of the act. Second, that the act be decreed to be unconstitutional, null, and void. Third, that if for any reason or reasons the pretended amendment should not be declared unconstitutional, that the court should issue a writ of mandamus directed to the board of state canvassers directing them to reconvene and recanvass the vote on said constitutional amendment, authorizing them, in proper cases, to hear evidence touching the alleged frauds and irregularities in the vote thereon, and the frauds, mistakes, and errors alleged in the canvass of the vote in different precincts, etc., or in lieu thereof that the court take jurisdiction of the matter and permit the plaintiffs to contest said election in this suit. At the trial (although permitted so to do under the issues as made) the plaintiffs elected not to offer any evidence as to the alleged frauds or irregularities pertaining to the election, but stated that they would rely upon the law questions raised by the pleadings and admitted facts, which, under the issues as then made (whether proper or not), called for a determination of the validity of the constitutional amendment itself. Judgment was for the defendants declaring the amendment valid, dissolving the temporary injunction, and dismissing the bill. The plaintiffs bring the case here for review upon error.

The learned Attorney General and the many able gentlemen of counsel associated with him in this matter have filed a very exhaustive brief, in which they earnestly urge and point out many alleged reasons why this action cannot be maintained. Their reasons can be summarized as follows: First, that the court is without jurisdiction of either the subject-matter or the persons of the respondents who are the executive officers of the state: (a) Because the question involved is political and governmental. (b) Because no means of contesting the election have been provided by law, and the decision of the state canvassing board is final and conclusive. (c) Because the state canvassing board is functus officio. (d) Because the state canvassing board is not subject to the jurisdiction or control of any court. Second, that by their demurrer it is shown there is a misjoinder of parties plaintiffs. Third, a misjoinder of parties defendant. Fourth, that several pretended causes of action have been improperly united, to wit, that a pretended cause of action in equity against the Governor and other executive officers as a debtfunding board is improperly united with a pretended cause of action in the nature of an application for mandamus to the alleged board of state canvassers; that said several causes of action do not affect or concern the same parties or defendants, nor do they severally affect all the defendants, nor do they affect or concern the defendants in the same characters or capacities. Fifth, that the several pretended causes of action are inconsistent one with the other, and are not such as may lawfully or properly be joined or prosecuted in one action or proceeding. Sixth, that the complaint does not state facts sufficient to constitute any cause or right of action, or to authorize an injunction or to require the defendant officers to answer or to authorize any equitable or other relief against them in any capacity or relation whatever; that most of these grounds go to the question of jurisdiction, and were not waived by answer; but in any event, if otherwise, they ought to be considered by this court in view of the fact that the defendants are sued as the executive officers of the state, and the question involved is the constitutionality of a constitutional amendment.

As all questions of fraud pertaining to the election were eliminated by the plaintiffs themselves, and the trial court, whether correctly or otherwise, having gone to the bottom of the main contention by passing upon the constitutionality of the act, without determining any of the other questions raised by the Attorney General, and without passing upon, approving, or disapproving, as a precedent, this method of procedure, owing to the great importance of the constitutional questions raised, we deem it advisable to consider and determine these main contentions as disposed of by the trial court.

If we correctly understand the position of the plaintiffs in error it is that this amendment to the Constitution is itself unconstitutional, null, and void, for five different reasons: First, because no provision is therein made for contesting the election of the vote upon the amendment. Second, because the plaintiffs in error and other warrant holders are deprived of their property without due process of law and denied the equal protection of the laws in violation of the federal Constitution, which they allege gives to them the right as warrant holders and taxpayers to have their rights determined in the regularly constitutionally established courts of the state. Third, because the alleged amendment contravenes article 3 of our Constitution, which provides for the three departments of government and that the powers properly belonging to one department shall not be exercised by either of the others, and also because it contravenes section 1 of article 6 of our Constitution, which provides that the judicial power of the state shall be vested in the Supreme Court, district courts, county courts, justices of the peace, and such other courts as may be provided by law, and also section 6 of article 2, which provides that courts of justice shall be open, etc., in that this amendment attempts to delegate to executive and ministerial officers judicial powers. Fourth, because it contravenes section 4 of article 11 of our Constitution, which provides that no debt shall be created under authority of that article, except by a law which shall be...

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8 cases
  • Green v. United States, 7215.
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 14 Diciembre 1933
    ...Central Coal & Coke Co., 25 Wyo. 511, 173 P. 981; Gherna v. State, 16 Ariz. 344, 146 P. 494, Ann. Cas. 1916D, 94; Post Printing & Pub. Co. v. Shafroth, 53 Colo. 129, 124 P. 176; Clark v. Reynolds, 136 Ga. 817, 72 S. E. 254; City of Louisville v. Vreeland, 140 Ky. 400, 131 S. W. 195; Hartsho......
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    • 23 Diciembre 1912
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    ...and claims against the states are very common instrumentalities in the administration of their finances.' Post Printing & Publishing Co. v. Shafroth, 53 Colo. 129, 124 P. 176, 180. And Colorado has frequently adopted such administrative procedure. 'Similar powers and duties by executive off......
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