Trimble v. People ex rel. Phelps

Chiee Justice Hayt delivered the opinion of the court. 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 consitution 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 — 192 — 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 airy other state. It has the merit of being couched in as direct and positive language as could well have been emplojmd. 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, which although 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’s Appellate Procedure, sec. 33; The City of Cairo v. Bross, 99 Ills. 521; Chaplin v. Commissioners of Highways, 126 Ills. 264; Benson, Administrator, v. Christian, 129 Ind. 535; Williams v. Louisiana, 103 U. S. 637. The statute creating the court of appeals has been in force in this state but a short time, and it is obvious that the practice under it can only be developed and become settled as the result of experience and judicial decision from time to time as questions shall be presented. We shall not undertake to de — 193 — termine in this case, nor is it necessary to determine, whether or not constitutional questions which have once been determined by this court can thereafter be considered open to controversy, to the extent of furnishing ground for jurisdiction in subsequent cases in this court. Under the foregoing provision, whenever the construction of a constitutional provision, state or national, is necessary to a determination of a casé, the court .has entire jurisdiction of the case, not onty of the constitutional question, but of all other matters necessary to a complete determination of the controversy. The same result would necessarily follow from the well established rule that the incidents of a class of cases follow the class. This rule is now universally recognized. Any other would distribute the cases by piecemeal between the two courts of review, involving our litigation in hopeless and inextricable confusion. Elliott’s Appellate Procedure, sec. 36; Smith v. Newberne, 70 N. C. 14; Cook County v. McCrea, 93 Ills. 236. In this case a constitutional question was raised in the' court below by defendant in error, and as we shall presently show, such question was erroneously determined in his favor. Still other constitutional questions were raised in that court. The determination of these questions was found necessary by the district court in deciding the case. They have been fully argued in this court, and must necessarily be construed upon this review. The jurisdiction of this court must, therefore, be taken as established. The underlying error that entered into the decision of the district court is upon the construction of section 6 of article IY of the Constitution. This provides that the governor “ may remove any such^officer for incompetency, neglect of duty or malfeasance in office.” The court assumed that the authority for the removal of relator rested upon this constitutional provision. It was construed as a limitation upon the exercise of the power of removal from office, and to deprive the governor of the right of removal unless there existed one of the three specified reasons mentioned therein. The — 194 — court further held that whether such reason existedln a particular case must be determined upon an investigation, in its character judicial, before the governor was authorized to act. An analysis of the constitutional provision, however, shows that the officers therein referred to are, first, those whose offices are established by the constitution; second, those whose offices are created by law, the appointment or election to which is not otherwise provided for. The relator’s office does not fall under either class mentioned, for while it is true that his office was created by law, his appointment is also provided for by statute, and the same statute provides that such appointment shall be made with power of suspension or removal by the governor at any time, for cause to be stated in writing, but not for political reasons. The office being one of statutory creation, the manner of filling it, and the mode of removal and filling of vacancies being also provided by statute, the case falls clearly outside of those offices to which the constitutional provision relates. The People ex rel. v. Osborne, 7 Colo. 605; Brown v. The People, 11 Colo. 109. In this connection we may consider section 1 of article XII, and section 8 of article XIII of the Constitution. The argument based upon these provisions is to the effect that before an officer not liable to impeachment can be removed the procedure leading up to a judgment or removal must be prescribed by an act of the legislature. These two provisions, singly or together, do not warrant this deduction. The first in the order in which they appear in the constitution provides only that, “ 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.” The words “ according to law ” in this section can have no other construction than that such officers shall be removed as provided by the constitution, or statute 'law. And the same is equally true of section 3 of article XIII, providing that certain officers shall be liable to removal for misconduct or malfeasance in office in such manner as may be provided by law. There is certainly nothing in these provisions prohibiting the — 195 — legislature from authorizing the summary removal of the relator in this case, and if removed in accordance with a constitutional statute he was removed “ according to law.” It is claimed that the provision in reference to removals by the governor applies only to appointees made by that officer to fill vacancies caused by resignation, death or otherwise of the appointees confirmed by the senate, and that as to those appointments made by the governor and confirmed by the senate, the governor alone has no power of removal. In support of this claim the following eases are cited: The People v. Cazneau, 20 Cal. 504; The People v. Freese, 76 Cal. 633; The People v. Freese, 83 Cal. 453. These decisions were based upon the statutes of California, providing that certain officers appointed by the governor, with the advice and consent of the senate, could only be removed by the governor with the concurrence of the senate. The power of the legislature to invest the governor alone with authority to remove being expressly recognized, as appears from the following extract from the opinion written by Chief Justice Field in People v. Oazneau, supra. “ The office was created bylaw and the mode in which the office and vacancies therein should be filled was matter purely of legislative discretion.” Our statuté furnishes a conclusive answer to this argument of counsel. Section 45 of the charter, after providing for the appointment of the fire, police and excise commissioners by the governor by and with the advice and consent of the senate, further provides that the governor may in vacation of the senate fill vacancies by appointment 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, etc. Such broad and sweeping language as this is certainly sufficient to include all the appointments provided for in said section, whether made with the advice and consent of the senate, or to fill vacancies during vacation of the senate ; and to undertake to restrict the power of the governor, as urged by counsel, would be a perversion of the- letter and spirit of the act. - — 196 — Authorities are cited, although not seriously relied upon, to show that an office is property and that the possessor has a vested right therein. This, however, grows out of the common law rule regarding an office as a hereditament. It can have no foundation in a republic like ours. “ Public offices,” says Ruggles, C. J., in Connor v. New York, 5 N. Y. 285, “ are not incorporeal hereditaments, nor have they the character or qualities of grants. They are agencies. With few exceptions, they are voluntarily taken, and may, at any time, be resigned. They are created for the benefit of the public, and are not granted for the incumbent. Their terms are fixed with a view to public utility and convenience, and not for the purpose of granting the emoluments during that period to the office holder.” See also, Mechem on Public Officers, secs. 464, 465. The statute only requires that the reason for removal shall be other than political and that it shall be stated in writing. The words “ but not for political reasons ” are words of limitation, and could have been deemed necessary by the legislature for but one reason, to wit: that otherwise, the governor might remove for political purposes. The intent on the part of the legislature to confer the power of removal for any other cause satisfactory to the governor, is made plain by the words of limitation. Was the action, taken by the governor authorized by the statute? By it the governor is given full power over the removal of the officers named, subject to the specified restrictions. It • is a familiar principle, subject to general application, except as otherwise limited by the constitution, that municipal corporations are creatures of the statute, and that the legislative power over the same is plenary. The legislature had the power to provide for the creation of a police commissioner for the city of Denver; it had the power to provide the manner in which such office should be filled, and there can be no doubt that it had like power to provide for removals. In the same section in which the authority is conferred upon the governor to remove certain officers for cause, like — 197 — authority is conferred upon the mayor to remove officers appointed by him. It is to be observed that the language of the statute is substantially the same in both instances. The legislature, in dealing with these officers, was dealing with the chief executive officer of the state and with the chief executive officer of the city of Denver. It certainly understood that in administering the affairs of the state in the one instance, and the affairs of the city of Denver in the other, these administrative officers would be likely to be called upon to act in a summary manner with their subordinates in certain contingencies, and the fact, if it be a fact, that the governor acted in this case without sufficient reflection, is a weak argument against the investiture of the power of removal in the executive of officers appointed by him. Experience has demonstrated that the power of removal must be lodged somewhere ; and the fact that the power exists and may be exercised as occasion requires carries with it the possibility that the power may not always be wisely used. But if this is to be taken as a conclusive argument against the power, it applies as well to all investiture of authority, and would overthrow government itself. Whatever may be the rule as to those officers, the removal of whom for certain specified causes is provided by other statutes or by the constitution, the governor, under the statute before us, is not required, as a prerequisite to removal, to institute an investigation in the nature of a judicial or quasijudieial inquiry. The investiture of the power of removal here given is restricted'in but two particulars; it must not be exercised for political reasons, and the cause of removal must be stated in writing. In considering removals under this act we must assume that the law-making body was of the opinion that the requirement that the cause of removal should be stated in writing was the only check necessary to prevent an arbitrary and oppressive abuse of the power. If removals were only authorized for certain specified reasons a question of procedure might have been presented more difficult of solution. In this instance the cause stated does — 198 — not import any wrong doing to the officer* and while it may not be such as would have had weight with a court, it was deemed sufficient by the governor, and his judgment is final and decisive. The office of police commissioner is created by the statute; it was accepted by the relator under the conditions imposed by the act, among which was that the incumbent should hold it subject to removal by the governor for cause. Under the statute the cause that may be sufficient to warrant removal is to be determined by the governor, and no mode of inquiry being prescribed he is at liberty to adopt such mode as to him shall seem proper, without interference on the part of the courts. 'The governor was not bound to examine witnesses under oath, or otherwise, although it was eminently proper that he should do so. He might have resorted to other means for ascertaining whether a cause of removal existed; and the refusal to allow counsel is not a fatal objection to the governor’s action, as he might have proceeded ex parte. The governor having determined that a sufficient cause for removal existed, and having exercised the power confided to him, relator is without remedy in this proceeding. It is the duty of the courts to uphold the executive power as it has been conferred by the legislature. The foregoing conclusions find support in the following decisions in addition to those already cited. Keenan v. Perry, 24 Texas, 253; Wilcox v. The People, 90 Ills. 186; The People ex rel. Stevenson v. Higgins, 15 Ills. 110; State v. Doherty, 25 La. An. 119; State v. Hawkins, 44 Ohio St. 98; City of Hoboken v. Gear, 27 N. J. Law, 265; People v. Whitlock et al., 92 N. Y. 191; State v. McGarry, 21 Wis. 502. The judgment of the district court will be reversed and the cause remanded, with direction that judgment be entered for plaintiff in error. Reversed.