Uzzell v. Anderson

• Decision Date: 02 July 1906
• Parties: UZZELL et al. v. ANDERSON et al.[*]
• Court: Colorado Supreme Court

89 P. 785

38 Colo. 32

UZZELL et al. v. ANDERSON et al.^[*]

Supreme Court of Colorado, En Banc.

July 2, 1906

Rehearing Denied Jan. 7, 1907.

Error to District Court, City and County of Denver; John I Mullins, Judge.

Action by Frank Anderson and another against Thomas A. Uzzell and others, individually and as members of the board of county commissioners of the city and county of Denver. From a judgment in favor of plaintiffs, defendants bring error. Reversed and remanded, with directions to dismiss the complaint.

Steele Gunter, and Bailey, JJ., dissenting.

William B. Tebbetts (Herbert M. Munroe, of counsel) for plaintiffs in error.

John T. Bottom, for defendants in error.

MAXWELL J.

Defendants in error, as relators, by this action (mandamus) seek to compel plaintiffs in error to recognize them as members of the board of county commissioners of the city and county of Denver. The alternative writ averred that, at the general election held in November, 1902, relators were elected county commissioners of the county of Arapahoe, qualified as such in January, 1903, served in such capacity until March, 1903, when the members of the city council of the city and county of Denver usurped and intruded themselves into the office of county commissioners of the city and county of Denver; that thereafter the board of supervisors elected under the charter of the city and county of Denver succeeded the city council in the performance of the duties of county commissioners, and continued to do so until the decision of this court in People ex rel. v. Stoddard (No. 5,655) 86 P. 251, 34 Colo. 200, when the defendants assumed to perform the duties of county commissioners; that thereupon relators demanded to be permitted to meet with respondents and perform the duties of county commissioners, which demand was refused; that, under the laws of Colorado, the board of county commissioners of the city and county of Denver consists of five members. The return to the alternative writ questioned the sufficiency of the facts stated to constitute a cause of action, denied the averments of the writ, and alleged the election of respondents to the office of county commissioners of the city and county of Denver at the general election of 1904, their qualification, and entry upon the discharge of the duties of such office. A hearing resulted in a judgment making the alternative writ peremptory, to review which is this writ of error.

Article 20 of the Constitution was approved by the people at the general election held November, 1902, the same election at which relators claim to have been elected county commissioners of the then county of Arapahoe. This article has been upheld by this court in a number of cases (People v. Sours, 31 Colo. 369, 74 P. 167, 102 Am.St.Rep. 34; Montclair v. Thomas, 31 Colo. 327, 73 P. 48; People v. Adams, 31 Colo. 477, 73 P. 866; Parsons v. People, 32 Colo. 221, 76 P. 666; Denver v. Adams Co., 33 Colo. 1, 77 P. 858), and in what are known as the county officers' cases, and by the Court of Appeals, in McMurray v. Wright, 19 Colo.App. 17, 73 P. 257. Section 3, art. 20, provides: 'Immediately upon the canvass of the vote showing the adoption of this amendment, it shall be the duty of the governor of the state to issue his proclamation accordingly, and thereupon the city of Denver, and all municipal corporations and that part of the county of Arapahoe within the boundaries of said city, shall merge into the city and county of Denver, and the terms of office of all officers of the city of Denver and of all included municipalities and of the county of Arapahoe shall terminate.' Following the above is a clause excepting from the operation officers of the city of Denver and of the the officers of the city of Denver and of the county of Arapahoe. The board of county commissioners, however, is not included in such exception. By the plain, unambiguous language of the above section, the terms of office of county commissioners of Arapahoe county, to which offices relators claim to have been elected, terminated immediately upon the canvass of the vote showing the adoption of article 20 and the proclamation of the Governor to that effect, which was made December 1, 1902. In McMurray v. Wright, 19 Colo.App. 17, at page 21, 73 P. 257, at page 259, the court said: 'The moment the constitutional amendment took effect, the municipal corporation, known as the 'City of Denver,' and the quasi corporation, known as the 'County of Arapahoe,' ceased to exist; and a new body politic and corporate was created, called the 'City and County of Denver.' At the same time the terms of all officers of the city of Denver, the included corporations, and the county of Arapahoe, except the district judges, the county judge and district attorney, expired; but for the purpose of furnishing the new corporation with a government until, under the charter to be framed, an election for the proper officers could be had, the mayor, council, boards, and certain of the officers of Arapahoe county were constituted by the amendment officers of the city and county of Denver.'

Defendants in error invoke the doctrine of contemporaneous legislative exposition approved by this court in People v. Horan (No 5,670) 86 P. 252, 34 Colo. 304, in aid of their position. The argument is that the General Assembly which submitted to the people the amendment to the Constitution known as article 20 also submitted an amendment to section 6, art. 14, which in effect provided that, in each county in the state of less than 70,000 population, there should be elected three county commissioners for the term of four years, two to be elected in 1904 and one in 1906; that, when the population of a county shall equal or exceed 70,000, the board of county...