Sheely v. People

• Decision Date: 06 January 1913
• Citation: 129 P. 201,54 Colo. 136
• Parties: SHEELY v. PEOPLE.
• Court: Colorado Supreme Court

129 P. 201

54 Colo. 136

SHEELY v. PEOPLE.

Supreme Court of Colorado, En Banc.

January 6, 1913

Error to District Court, Weld County; Neil F. Graham, Judge.

Charles G. Sheely was convicted of bribing a public official, and he brings error. Affirmed.

M. B. Waldron and B. B. Laska, both of Denver (Geo. Q. Richmond and O. N. Hilton, both of Denver, of counsel), for plaintiff in error.

Benjamin Griffith, Atty. Gen., Charles O'Connor, First Asst. Atty Gen., and Geo. A. Carlson, Dist. Atty., of Ft. Collins (John T. Jacobs, of Greeley, of counsel), for the People. Chas. B Ward, amici curiae.

MUSSER J.

The plaintiff in error was sentenced for a term in the penitentiary for bribing one of the county commissioners of Weld county. The information was based upon section 1720 Rev. Stat., which, so far as is material to this review, is as follows: 'If any person shall directly or indirectly give any sum or sums of money * * * to any judge, justice of the peace, sheriff, coroner, clerk, constable, jailer attorney general or prosecuting attorney, mayor, alderman or member of city council, member of the legislative assembly, or other officer, ministerial or judicial (but such fees as are allowed by law), with intent to induce or influence such officer to * * * the person so giving and the officer so receiving any money, * * * with intent or for the purpose or consideration aforesaid, shall be deemed guilty of bribery, and on conviction. * * *' It is the contention of the plaintiff in error that a county commissioner is not included with the section, and that, therefore, the information did not charge an offense against any law of this state. To determine the question presented, it is necessary, as it is in the case of any statute, to ascertain the intention of the Legislature in enacting the law. For this purpose, such rules of construction as are favored by the courts and that may aid in reaching a correct determination may be employed.

At the same time it must be remembered that this is a criminal statute, and should be strictly construed as against the state and liberally in favor of the accused, but the strictness to be employed or the liberality to be indulged must not be such as will confine the operation of the statute within limits narrower than those intended by the Legislature or destroy the intention of the lawmaking body. Counsel for plaintiff in error have called to our attention certain well-known rules of statutory construction, and insist that they should be applied to determine the intention of the Legislature with respect to the statute in question. They are the rules of ejusdem generis, noscitur a sociis, and expressio unius est exclusio alterius. We have no quarrel with these rules, nor the authorities cited with respect to them. They can be used only to aid the courts in ascertaining the legislative intent; and, when they are to be used for that purpose, they, of course, must be applicable and afford aid. If they do not afford any aid, they are not to be resorted to.

The first two of the rules mentioned are closely related. The one is: 'Where a particular class is spoken of, and general words follow, the class first mentioned is to be taken as the most comprehensive, and the general words treated as referring to matters ejusdem generis with such class.' State v. Krueger, 134 Mo. 262, 35 S.W. 604. The second is that the meaning of a doubtful word may be ascertained by reference to the meaning of words associated with it; that is, 'by considering whether the word in question and the surrounding words are in fact ejusdem generis and referable to the same subject matter.' Brooms' Leg. Max. (7th Ed.) p. 439. It is plain from the statement of these rules that, before they can be of any aid, it must clearly appear that the Legislature was thinking of a particular class of persons or objects. Now it does not appear that the Legislature had in mind any particular class of officers when we read the section under consideration. The words are, 'any judge, justice of the peace, sheriff, coroner, clerk, constable, jailer, attorney general or prosecuting attorney, mayor, alderman or member of city council, member of the legislative assembly, or other officer, ministerial or judicial.' Here are enumerated executive, legislative and judicial officers; state, county, and municipal officers; some that possess ministerial qualities in varying degrees; some that are alone in their office; others that are members of official bodies. It cannot be said that those mentioned are all of one particular class, so as to make the general words referable to a class. The other rule, that the mention of one thing is the exclusion of the other, is equally inapplicable. Specific enumeration of the officers mentioned does not exclude county commissioners if the general words that follow will fairly include them. It follows that these maxims or rules are not aids in the construction of this statute. If the statute relates to a county commissioner, it must be because that officer is fairly included in the words, 'or other officer, ministerial or judicial.' In the general scope of their duties commissioners are not judicial officers.

In Merwin v. Boulder Co., 29 Colo. 169, 67 P. 285, this court held that passing on claims against the county, which is one of the duties of a county commissioner, is not a judicial act. Yet such an act requires the exercise of discretion and the ascertainment of facts. So in many other matters the county commissioners are vested with large discretionary powers. Some of them may approximate judicial powers, may be called quasi judicial powers, but most of them are not really judicial. The commissioners are the agents of the county. When they act, it is the county acting through them. Whatever they do is in the management and administration of the affairs of the county. They do not sit like a disinterested judge to hear and determine controversies between two parties, but they hear and determine the case of the county that they represent. They, in effect, ascertain facts and employ their discretion largely in their own cases, and determine them similar to the way any business man will do in the management of his own affairs. These are administrative acts, rather than judicial.

County commissioners represent their county, and have charge of its property and the management of its business concerns. Their duties are to administer the affairs of their county, and in that behalf to exercise such power as is expressly conferred upon them by the Constitution and the statutes of the state, and such implied power as is reasonably necessary to the proper execution of the express power. Roberts v. People, 9 Colo. 458, 13 P. 630; Merwin v. Boulder Co., supra.

The general scope of their duties being the administration of the affairs of the county, they must be administrative officers, and though vested with a large amount of discretion, which this court has many times said cannot be controlled by the courts, yet it is administrative discretion, rather than judicial. Nor are they legislative officers. They do not make law, but are themselves wholly subject to the Constitution and the statutes, and are concerned only in the administration of the business of the county as therein directed.

If they are neither judicial nor...