In re Fire & Excise Commissioners

Mr. Justice Goddard delivered the opinion of the court. We have uniformly declined to give an opinion in response to executive or legislative questions propounded under section 8, article VI of the Constitution, that might affect private rights or prejudice private interests. A strict adherence to this rule of practice would preclude our answering the present inquiry, since it in terms calls for an ex parte decision of the rights of contesting claimants to an office. But the gravity of the situation and the impending danger to life and property disclosed by the accompanying statement, imperatively demand that we so far depart from this rule as to give an opinion upon the facts as submitted, without prejudice to the rights to show other or different facts. We do this hoping thereby to allay popular excitement and avert riot and bloodshed. We feel more at liberty in so doing in the present instance for the reason that the power of the governor to remove incumbents of the offices of fire and excise commissioner has recently been thoroughly and elaborately argued before us, and upon careful consideration decided by this court in the case Trimble v. The People ex rel. Phelps, ante, 187. In that case the power of the governor to remove an incumbent of the office of police commissioner of the city of Denver, for cause other than political, was clearly recognized. Chief Justice Hayt, speaking for the court, said : — 497 — “ 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. * * * 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. * * * The investiture of the power of removal here given is'restrieted 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 lawmaking 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. * * * 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 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.” Therefore, if the statement of the cause assigned for the. removal of Orr and Martin be accepted as true, as it must be upon this inquiry, and the removal was made therefor and not for political reasons, the action of the governor was clearly within the power conferred upon him by the legislature under the doctrine announced in that case, and it.follows that upon notice of such order of removal the right of Orr — 498 — and Martin to hold the offices and exercise the powers of fire and excise commissioners of the city of Denver terminated ; and Mullins and Barnes, if duly appointed and qualified as set forth in the foregoing statement, were entitled to enter upon the duties of those offices respectively. But it further appears from the communication submitted that Orr and Martin refuse to surrender the offices, and for some reason question the validity of the order of removal and the legality of the appointment of Mullins and Barnes. We .are not advised upon what ground they rest their refusal or predicate their right to retain the offices; nor can we in this ex parte proceeding inquire into or consider them. Their sufficiency must be determined in a different proceeding, and should in the first instance be submitted to another tribunal. Certain expressions in the Trimble case, supra, were referred to and relied upon in argument as announcing a doctrine the reverse of this. In that case the power of removal by the executive was contested upon various grounds. One of 'these grounds was that a determination as to whether a cause of removal existed was judicial in character, and it was also contended that the governor could not act in the absence of a statute fixing the procedure. It was in answer to the latter claim that the following language was used: “ 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 libei'ty to adopt such mode as to him shall seem proper, without interference on the part of the courts.” The words “without interference on the part of the courts,” as the context shows, have reference to the procedure only; that as to this, the executive could adopt such mode as he might deem proper and suited to the occasion; that it was — 499 — not contemplated by the act that he should be required to institute an inquiry in its nature judicial. No question was then mooted as to the power of the courts to entertain any appropriate proceeding to ascertain the title to the office in ease the incumbent should attempt to hold over in opposition to the executive order. On the contrary, in that case, the jurisdiction of the court was invoked by the removed official and his right to the seat was denied as a result. So also the following language used in the Trimble ease, viz.: “ 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,” had reference to the facts then before the court. The contestants by petition and answer had brought the facts relied on fully to the attention of the court for its judgment thereon ; there was no pretense that anything further could be shown material to the issue. The court did not say to the petitioner, “ You had no right to test the validity of the removal in this proceeding; ” but it did say, in effect, “ The facts shown by the record are not sufficient to warrant a decision in your favor, and the judgment of ouster entered by the district court was unwarranted and must be set aside.” That no further doubt may exist upon this question, we say, without hesitancy, that if the executive order of removal is questioned by the incumbent, the courts have the power, and it is exclusively within their province, to pass upon such objections and determine as between the respective claimants the right to the office in question, and the law provides a plain and adequate procedure for that purpose; and a speedy determination of such question is insured by express statute. Mills’ An. Stats., p. 880. All law-abiding citizens will, and all others should be required to, submit such controversies to these tribunals for settlement. The district attorney is empowered by statute to bring an action for that purpose. Code, 289. It was suggested by counsel in argument that an unquali — 500 — fied answer to the precise question presented should be given, and it was asserted that this court is bound by its own precedents to make response. The Speakership case, 15 Colo. 520, was referred to in support of these suggestions. That case bears little or no analogy to the present controversy. The constitution invests the house of representatives with the power of electing its own speaker, and no other department of the government has any voice in the matter; but,in the present controversy, as already shown, a resort to ordinary judicial proceedings is the proper mode of determining who are entitled to the offices of fire and excise commissioners. It is true, in the Speakership case, Governor Routt asked, among other questions, “ Who is now the speaker of said house ? ” This court did not, however, give a direct answer, but submitted certain questions for argument, as follows: “ (1) Has the court any authority under the constitution and laws to pass upon the matters thus presented for its opinion ? “ (2) What is the state of the law, parliamentary or otherwise, pertaining to the subjects covered by the executive inquiry ? ” After the argument the court remarked in its opinion that a judicial opinion in respect to an ex parte inquiry from the executive department concerning the affairs of the legislative department, was anomalous and peculiar, and also indicated that the court could not adjudicate the speakership contest and enforce its views in a direct proceeding. Nevertheless, the court felt bound to express an opinion in obedience to the constitutional mandate. After considering the state of the law, parliamentary and otherwise, and the constitutional objections urged against the power of the house to remove its speaker, the law was declared by the court as follows: ' “ The house of representatives has the power, by the vote of ‘ a majority of the whole number of members elected,’ to remove its speaker from office and to elect another in his — 501 — stead, in the manner stated in the executive communication submitted.” The court did not, however, assume to state who was speaker ; but observed that the majority of the house “ must assume and bear the responsibility for the exercise of their powers.” It was further urged in argument that this court should not make any observations concerning the powers and duties of the executive; that to do so would be an interference with a co-ordinate department of the government. In response to executive questions this court has in every instance endeavored to show that respect to the governor which is due to his high office. We have always recognized, as we do now, that the three governmental departments are co-ordinate, and that neither can lawfully encroach upon the province of the other. And while we concede to the governor full liberty to submit such questions as he may deem consistent with his executive powers, this court reserves for itself the right to express its opinion freely, in whole or in part, or not at all, as it shall deem consistent with its judicial powers and constitutional obligation. An opinion controlled or restricted by other influences than our own judgment and consciences, would not be the opinion of the court. But it is contended that the statements in reference to calling out the military were inserted for the purpose of showing the importance of the question and the'solemnity of the occasion under which the question was submitted. Such was undoubtedly the purpose of the statements. Were it not for the threatened dangers by force, military and otherwise, the question propounded would not be important nor the occasion solemn. We will not for a moment entertain the idea that in submitting this question his excellency, the governor, was actuated by other than a sincere desire to be advised as to the extent and scope of his statutory and constitutional powers, so that he may act advisedly and correctly in the discharge of his offleial functions; nor do we believe that he is averse — 502 — to receiving any dispassionate advice that may enable him better to know and perform those functions. We feel in duty bound, therefore, after having entertained and decided, as definitely as we feel at liberty to do, the specific question submitted, to go further and express our views upon those features of the situation that more directly affect the public welfare and are of more vital importance to the community than the question, “ Who shall discharge the duties of -fire and excise commissioner?” We are clearly of the opinion that the governor is greatly in error in assuming that it devolves upon him to enforce his order of removal. His constitutional oath to “ take care that the laws be faithfully executed ” imposes no such obligation upon him. His duty and responsibility cease upon the making of the order or appointment, and any attempt on his part to personally enforce such order or install his appointee is beyond any express or implied duty or power imposed or conferred upon him by constitution or statute. The police, fire and excise commissioners, though appointed by the governor, are not charged with duties pertaining to the chief executive department of the state. They are municipal officers, the same as the mayor and other officers of the city elected by the people. We are unable to see how the governor is charged with the duty of seating a member of the fire and police board any more than he is charged with the duty of seating any municipal officer elected by the people. Will it be contended that it is the duty of the chief executive of the state to install into office, by force if necessary, every county, precinct or municipal officer whom he may deem entitled to such office in advance of the determination of any controversy that may arise concerning such office ? A proposition so fraught with danger to every principle of free government cannot for a moment be entertained; and if such power cannot be lawfully exercised by the governor acting in his civil capacity, a fortiori is the use of military force to that end by him as commander in chief, unauthorized. — 503 — The constitution expressly provides (sec. 22, Bill of Rights) “ that the military shall always be in strict subordination to the civil power.” The governor’s warrant as commander in chief to call out the militia of the state is found in section 5, art. 4 of the Constitution, which reads as follows: “ The governor shall be commander in chief of the military forces of the state * * * he shall have power to call out the militia to execute the laws, to suppress insurrection or repel invasion.” There can be no pretense that the conduct of Orr and Martin constitutes the insurrection contemplated in the foregoing provision, and therefore the call must have been based upon the ground that the militia were needed “ to execute the laws.” We repeat that by no rule of construction can the power and duty imposed upon the governor “ to execute the laws ” be held to authorize the forcible induction of an appointee into office. In this provision of the constitution, the phrase, “to execute the laws,” contemplates the enforcement of a judicial process — that is, the enforcement of a right or remedy provided by the law and judicially determined and ordered to be enforced, and not an arbitrary enforcement by the executive of what he may consider the law to be. Cooley’s Const. Lim., pp. 87-92. We thing it too clear for argument that if Orr and Martin were guilty of the conduct charged and were acting in violation of law in resisting removal, their wrong doing affords no justification for calling out the militia to forcibly eject them. A proper regard for the reputation and peace of the community would dictate that the claimants institute proper proceedings in court to determine their right to the offices. In this way a speedy and peaceful result can be reached, and the person entitled to the office installed therein without disturbance or delay. So much has been said as to the delay incident to ordinary judicial proceedings, we desire to call attention again to our statute above cited, which requires proceedings of this character to be advanced; and if parties are diligent, the courts — 504 — will not permit unnecessary delay, but other causes will be postponed in order that proceedings of this kind may be speedily determined. Some delay is, of course, inevitable. Reasonable time must always be allowed for the consideration of the rights of the parties in the administration of justice under a free government. Monarchical and despotic governments can undoubtedly proceed more speedily than a representative government in the enactment, administration and execution of the laws. Reasonable delay is the price we pay in order to secure the protection and vindication of personal and property rights under a government like ours; and when it is once conceded that the hardship resulting from such delay justifies a resort to the summary exercise of arbitrary power, either by the civil or military authority, then will justice be dethroned and despotism or anarchy usurp her seat.