Prudential Ins. Co. of America v. Hummer

• Decision Date: 08 January 1906
• Citation: 84 P. 61,36 Colo. 208
• Parties: PRUDENTIAL INS. CO. OF AMERICA v. HUMMER.
• Court: Colorado Supreme Court

84 P. 61

36 Colo. 208

PRUDENTIAL INS. CO. OF AMERICA v. HUMMER.

Supreme Court of Colorado

January 8, 1906

In Banc. Appeal from Arapahoe County Court; R. D. McLeod, Judge.

Action by Carrie Hummer against the Prudential Insurance Company of America. From a judgment for plaintiff, defendant appeals. Reversed.

Benedict & Phelps, for appellant.

Charles M. Bice, for appellee.

James C. Starkweather, amicus curiae.

CAMPBELL J.

Action by appellee, as assignee or beneficiary, upon a policy of insurance issued by the appellant insurance company on the life of Joseph Stern. From a judgment for the plaintiff, the defendant has appealed.

As the action was begun before a justice of the peace, there were no written pleadings. The nature of the controversy and the questions for determination are, however, indicated by the defenses relied upon below to defeat the action, and here to reverse the judgment, and they may be stated under the following heads: (1) That the judge who presided at the trial was not the county judge of the county court of Arapahoe county, in which the cause was pending, but the judge of the county court of Lake county, and therefore was without jurisdiction to sit, hear, or determine the action; (2) the action was not brought within six months from the death of the insured, as the contract of insurance required; (3) the trial court erred in admitting, over defendant's objections, testimony offered by the plaintiff, and committed further error in the giving of instructions against defendant's objections, and refusing instructions requested by it; (4) the insured warranted that he was in good health at the time he applied for insurance, and that he had never been seriously ill, whereas both statements were false.

1. The constitutional question raised does not effect the merits of plaintiff's cause of action, but goes only to the point that there was no jurisdiction in the court, presided over by one not the duly elected judge thereof, to hear and determine the cause. The resolution of this constitutional question is not absolutely necessary to a decision of the present appeal for, as will appear later in the opinion, the appeal is sustained because of the erroneous ruling of the trial court in construing the contract of insurance. But as we gather from the record, and are so advised by counsel, the volume of business in the former county court of Arapahoe county, now of the city and county of Denver, is so great that for many years it has been the uniform custom of its presiding judge to call in the judge of the county court of some other county to assist in the trial of causes, and as the business of that court is constantly increasing such will be the future practice. So that probably the same situation will again be presented upon another trial, and some other than the duly elected judge of the county court will be likely to preside thereat. It therefore comports with good practice now to determine the constitutional question, because it may, and likely will, arise at another trial; hence its determination is, or may be, necessary to a decision of the case. The trial was had before Hon. R. D. McLeod, who then was the county judge of Lake county, Colo. Hon. Ben B. Lindsey was the duly qualified and acting county judge of Arapahoe county, now the city and county of Denver. At the request of Judge Lindsey Judge McLeod held the term of court under the authority of an act of the General Assembly approved March 4, 1899 (Sess. Laws 1899, p. 171, c. 91) which reads: 'That the county judges of the several counties of this state, with like privileges as the judges of the districts courts of this state, may interchange with each other, hold court for each other, and perform each others duties, when they find it necessary or convenient.' The district courts of this state have similar powers under the Constitution, as well as by statute. But appellant says this statute is void. A fundamental rule of construction is that every legislative act of the legislative department of government is presumed to be valid. It is incumbent, therefore, upon one who asserts its unconstitutionality to point out some specific provision of the Constitution which prohibits it. The prohibition must be either express or one that necessarily or exclusively arises by implication from some express prohibition. To this proposition we need only cite an early case in this court where the subject is exhaustively considered. People v. Rucker, 5 Colo. 455.

Recognizing this rule, appellant, though conceding that this statute, under which the interchange of judges took place, is not prohibited by any express provision of the Constitution, contends, nevertheless, that out of an express provision therein there arises by a necessary and exclusive implication a limitation upon the power of the General Assembly to enact it. The argument is that since section 12 of article 6 of the constitution contains an express declaration that the judges of the district courts may hold court for each other, and shall do so when required by law, and in section 22, relating to county courts, no such privilege is given or duty imposed, upon the principle that the expression of one thing is the exclusion of another, it necessarily follows that there can be no interchange of county judges. We cannot give our sanction to this reasoning. If the Constitution were entirely silent upon the subject, there is no question that, since the legislative functions of the lawmaking body are plenary, in the absence of a limitation found in the federal or state Constitution, the act authorizing county judges to interchange would be valid. The principle upon which it is said the present limitation exists is not fully applicable in construing a state, as distinguished from a federal, Constitution. The latter is an instrument of grants, the former one of limitations, of power. Merely because in the section relating to district courts the power of interchange is given, and the section applicable to county courts is silent, it is neither a logical nor a necessary deduction that the Legislature cannot confer upon county judges the right of interchange. In permitting judges of district courts to hold court for each other at their pleasure, and compelling them to do so when required by the General Assembly, section 12 prevented the General Assembly, in the one instance, from abolishing a judicial privilege, and in the other made imperative, and not discretionary, the duty of district judges to interchange when the Legislature required it. It contains in one sentence a grant of a right or privilege to district judges, and a corresponding implied limitation upon the General Assembly which disables that body from taking away the thing granted. In another sentence, there is a grant of power to the General Assembly, which in the absence of the grant that body would possess, and in connection with this grant is imposed a duty on the judges, when the granted power is exercised by the General Assembly, to yield obedience thereto, instead of following the discretion they would otherwise have. But in omitting similar provisions in section 22 there was no intention by way of implication to limit the power of the General Assembly in providing for interchange of county judges.

The Supreme Court of Illinois has held that provision for such interchange both by the circuit and county judges was within the power of the Legislature to make, but in that state the Constitution is silent, with respect both to circuit and county judges, hence their decisions are not squarely in point under our Constitution. Pike v. City of Chicago, 155 Ill. 658, 40 N.E. 567; Jones v. Albee, 70 Ill 34; Wells v. People, 156 Ill. 616, 41 N.E. 161; Wisner v. People, 156 Ill. 180, 40 N.E. 574. The case nearest in principle in our own reports is Jeffries v. Harrington, 11 Colo. 191, 17 P. 505. Section 2 of article 6 of our Constitution confers upon the Supreme Court appellate jurisdiction, and in section 11 the General Assembly is authorized to confer appellate jurisdiction upon district courts. No appellate jurisdiction is provided for in the Constitution for county courts. Our General Assembly passed an act conferring appellate jurisdiction upon county courts, and it was contended in the Jeffries Case that the act was void because by virtue of the provisions of sections 2 and 11 there was an implied limitation upon the General Assembly preventing it from conferring such power on county courts. But it was held that, under the provisions of section 23 of the same article relating to county courts, whereby they shall have original jurisdiction in certain matters 'and such other civil and criminal jurisdiction as may be conferred by law,' appellate jurisdiction might be granted under the quoted clause. While this case is not exactly in point, still we think that the decision might well have been based, not only upon section 23, but also upon the proposition that, the state Constitution being one of limitation and not of grant, there was no express prohibition, and none arising by necessary implication from any express prohibition, against the power to pass the statute in question. And, if 'such other civil * * * jurisdiction,' etc., permits a grant of appellate jurisdiction upon county courts, it will also, without any strained construction, justify the conferring upon their judges the right of interchange. In Parks v. S. & S. Home, 22 Colo. 86-94, 43 P. 542, it was held that the maxim, 'Expressio unius exclusio alterius,' did not operate to exclude from the executive department of the state certain public officers who do not belong to the legislative or judicial department, even though such officers are not named in section 1 of article...