Trimble v. People ex rel. Phelps

• Decision Date: 22 November 1893
• Citation: 19 Colo. 187,34 P. 981
• Parties: TRIMBLE v. PEOPLE ex rel. PHELPS.
• Court: Colorado Supreme Court

34 P. 981

19 Colo. 187

TRIMBLE v. PEOPLE ex rel. PHELPS.

Supreme Court of Colorado

November 22, 1893

Error to district court, Arapahoe county.

Action by the people of the state of Colorado on the relation of George H. Phelps against W. G. Trimble for the usurpation by respondent of the office of police commissioner of the city of Denver. Judgment for relator. Respondent brings error. Reversed.

The other facts fully appear in the following statement by HAYT C.J.:

Action under the Code for the usurpation of the office of police commissioner of the city of Denver. Judgment for relator Phelps. Trimble brings the case to this court upon writ of error.

On the 4th day of April, 1893, George H. Phelps was nominated, and by and with the advice and consent of the senate appointed by the governor to the office of police commissioner of the city of Denver. He, having duly qualified, entered upon the discharge of the duties of his office, and continued in the discharge of the same until the 27th day of June, 1893, when the governor removed him. The proceedings with reference to this removal, so far as the governor is concerned, were inaugurated on the 11th day of June, 1893, by the following letter: 'State of Colorado, Executive Chamber. Denver June 11, 1893. Mr. Phelps, F. & P. B'd, Denver Colorado--My Dear Sir: After much reflection, I have concluded that your conduct upon the F. & P. Board has been such that it has lost you the confidence of a majority of the citizens of Denver, and that you will be unable to benefit the city by a longer continuance in office. Believing that the good of the Populist party in Colorado and of the state administration require it, I respectfully ask that you send in your resignation as a member of the F. & P. Board as early as Tuesday evening of this week. Very truly yours, Davis H. Waite, Gov. of Colo.' Mr. Phelps having in the mean time declined to resign, upon the 15th day of June the governor caused to be served upon him the following: 'State of Colorado, Executive Office. Denver, June 15, 1893. George H. Phelps, Esq., Police Commissioner, City of Denver, Colo.--Sir: You are hereby notified and summoned to be and appear before me at my office (executive chambers) in Denver on Friday, June 16th, at 10 A. M., to show cause, if any you have, why you should not be removed as police commissioner of the city of Denver for neglect of duty or malfeasance in office, in the failure to arrest or prosecute one Coryell, indicted May last past for crime involving the reputation and integrity of yourself as a member of the fire and police board, and also for such incompetency in your administration of criminal affairs in said city of Denver as to lose you the confidence of the people of the said city. Davis H. Waite, Gov. of Colo.' The next day a hearing was had before the governor, although no specific charges were filed. The relator was denied the right of appearing by counsel, and his application for a short continuance to prepare for trial was overruled. As the result of the investigation, and on the following day, the governor issued an order in writing, which, after certain recitals, concludes as follows: 'It is not necessary to find, nor do I find, that Messrs. Stone and Phelps were corruptly interested in the offense of Coryell, but I do find on the part of Messrs. Stone and Phelps, and each of them, such failure to recognize the gravity of the situation, the necessity of some prompt and effective action to exonerate the police authorities of the city from any connection, real or apparent, with the Coryell matter, and such incompetency in allowing the said Coryell the freedom of the police office for consuitation, and under circumstances which might plausibly be considered confidential, that such conduct amounts to neglect of duty, and merits, therefore, the removal from office. It is therefore ordered that C. B. Stone be, and he is hereby, removed from the office of fire commissioner of the city of Denver, and that George H. Phelps be, and he is hereby, removed from the office of police commissioner of the city of Denver. Davis H. Waite, Governor of Colorado.' Thereafter such further proceedings were had as resulted in the appointment of plaintiff in error, Trimble, to the office of police commissioner in place of relator.

The following provisions of the statute and of the state constitution are referred to in the opinion: Court of Appeals: 'No writ of error from, or appeal to, the supreme court shall lie to review the final judgment of any inferior court, unless the judgment, or in replevin, the value found exceeds two thousand five hundred dollars, exclusive of costs. Provided, this limitation shall not apply where the matter in controversy relates to a franchise or freehold, nor where the construction of a provision of the constitution of the state or of the United States is necessary to the determination of a case. Provided, further, that the foregoing limitation shall not apply to writs of error to county courts.' Sess. Laws 1891, p. 118. Charter of the City of Denver: 'Sec. 45. Immediately upon the passage of this act, and biennially thereafter, the governor of the state of Colorado shall, by and with the advice and consent of the senate appoint the fire commissioner, the police commissioner and the excise commissioner for the term of two years, who shall in 1893 take the places, and shall exercise the powers and perform the duties of the fire and police board of the city of Denver. The governor may in vacation of the senate, fill vacancies by appointments in writing filed with the secretary of state; and all appointments by the governor shall be made with power of suspension or removal at any time for cause, to be stated in writing, but not for political reasons. * * * All appointments made by the mayor shall be in writing, filed with the city clerk, with power of suspension or removal at any time for cause stated in writing filed with the same officer, but not for political reasons, and with power to fill vacancies in the same manner.' Sess. Laws 1893, p. 172. 'Every person holding any civil office under the state, or any municipality therein, shall, unless removed according to law, exercise the duties of such office until his successor is duly qualified. * * *' Const. art. 12, § 1. 'All officers not liable to impeachment shall be subject to removal for misconduct or malfeasance in office, in such manner as may be provided by law.' Id. art. 13, § 3. '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 of malfeasance in office. * * *' Id. art. 4, § 6.

O'Neill & Park and Platt Rogers, for plaintiff in error.

W. T. Rogers and I. G. Barlow, for defendant in error.

Rogers & Stair, amicus curiae.

HAYT, C.J., (after stating the facts.)

It is suggested by counsel that this court is without authority to review the judgment of the district court in this proceeding. It is conceded that, if this court has jurisdiction since the enactment of the statute creating the court of appeals, it is by virtue of the proviso in the first section of the act creating that court, by which the jurisdiction of this court is retained where the construction of a provision of the constitution of the state or of the United States is necessary to the determination of a case. The object of providing for the jurisdiction of this court in all cases where constitutional questions are involved is that questions of such grave importance, affecting the organic law of the state, and the power of the legislative, executive, and judicial departments, should be determined by the highest court in the state. In several states intermediate courts of review have been created, but the provisions fixing the jurisdiction of such courts are far from uniform. The section in force in this state does not appear to have been copied, even in substance, from the laws of any other state. It has the merit of being couched in as direct and positive language as could well have been employed. Under the proviso, whenever a constitutional question is necessarily to be determined in the adjudication of a case, an appeal or writ of error will lie from the final judgment to this court. It matters but little how such question is raised, whether by the pleadings, by objections to evidence, or by argument of counsel, provided the question is by some means fairly brought into the record by a party entitled to raise it. It is obvious, however, that some limitation must be placed upon the foregoing proviso, otherwise every case might be brought into this court, and thereby the power and usefulness of the court of appeals destroyed. It is clear that mere assertion that a constitutional question is involved will not be sufficient to give jurisdiction. It must fairly appear from an examination of the record that the decision of such question is necessary, and also that the question raised is fairly debatable. Our attention has been called to a number of cases in which this question has been raised under statutes dissimilar from the one in force in this state; the decisions are valuable as authorities in support of the conclusion that the constitutional question invoked to give the court jurisdiction must be fairly debatable, and not based on mere assertion. To this extent, at least, the authorities are uniform. See Elliott, App. Proc. § 33; City of Cairo v. Bross, 99 Ill. 521; Chaplin v. Commissioners, 126 Ill. 264, 18 N.E. 765; Benson v. Christian, 129 Ind. 535, 29 N.E. 26; Williams v. Louislana 103 U.S. 637....