People ex rel. Attorney General v. Owers

Chief Justice Campbell (after the foregoing statement of facts) delivered the opinion of the court. The jurisdiction of this court to entertain quo warranto proceedings to oust from office a constitutional officer subject to impeachment, is challenged by defendant. It is contended that swh officer can be removed only by impeachment proceedings by the general assembly. We shall, however, assume that this court is vested with jurisdiction over the charges herein preferred, and proceed to dispose of the cause on its merits. It is conceded that in jurisdictions where common law rules and principles of procedure prevail, as is the case in Colorado where original proceedings are brought in the supreme court, the burden of proof iii quo warranto proceedings instituted by the state is always upon the defendant, to establish his right to hold and enjoy the office constituting the subject matter in controversy; and we think it also true that defendant must with particularity allege all necessary facts, showing not only that he was eligible to the office at the time of his election, but he must also allege and prove all essential facts, showing a continuing right to hold that office down to the time of the institution of the proceeding to oust him. While the attorney general in the information set iorth the facts which he claims show not only that — 545 — plaintiff was ineligible to the office, but has not the right at the present time to hold it, still, we apprehend that the real issues in the case are formed by the averments in the plea to the information, and the replication thereto. Applying these rules to the admitted facts, it must appear that defendant’s alleged right to hold is clearly established by him, or he will be removed. At the same time, no merely technical interpretation of the language employed in the statement, and no strained construction, should be made, that will operate to deprive him of an office which he has in fact for several months filled. We have in the foregoing statement given the facts in sufficient detail to obviate any extended discussion of their legal effect, for we have concluded that the statement itself is probably the best vindication of the conclusion which we have reached. 1. The requirement of section 16 of article vi of the constitution, that a person to be eligible to the office of district judge shall, at the time of his election, be an elector within the judicial district, is met by the facts of this case. In Sharp v. McIntyre, 23 Colorado, 102, this court held that one is entitled to vote, and is an elector, only where his domicile or legal or constructive residence is, as distinguished from his actual abiding place. We think that the plaintiff’s domicile was in Lake county at the time of his election in November, 1900, and, therefore, he was eligible to hold, this office. Jain v. Bossen, 27 Colo. 423. 2. Section 2 of article xii of the constitution provides that no person shall hold any office or employment of trust or profit under the laws of the state, without devoting his personal attention to its duties. Defendant insists that this means merely that the — 546 — one chosen to an office must be responsible for the discharge of its duties in his own proper person, and may not transfer the office to another or relieve himself from responsibility of his trust; but for a failure to meet this requirement an abandonment does not Jesuit. Plaintiff contends that the officer must diligently and faithfully in person execute the duties belonging to his office, and be on hand physically at the place or places where such duties are to be discharged, ready and willing to perform them; and if, through wilfulness or carelessness, he refuses to perform any of its duties for so long a period as reasonably to justify the presumption that he does not desire or intend to perform them, he may be held to have forfeited and abandoned the office. Whatever be the meaning of the section and the consequences of such violation of its mandate as plaintiff argues has been shown, we are of opinion that defendant has not been guilty of such a violation as would authorize us to remove him. It is urged that owing to his absences from his district, he has not devoted, and could not devote, his personal attention to his official duties as an officer should, particularly with respect to vacation business, but we are not persuaded that an abandonment can be said to follow from such facts relating thereto as the record discloses. 3, A more difficult question arises out of the alleged violation by defendant of section 29 of article vi, which says that all (judicial) officers provided for in the article, excepting judges of the supreme court, shall respectively reside in the district, county, precinct, city or town for which they may be elected or appointed. The word “reside” may, and sometimes does, have different meanings in the same or different articles or sections of a constitution or stat — 547 — ute, but the direction here, that a district judge shall reside within his district, manifestly was not intended for his convenience, but for the benefit of the people, whose servant he is. Doubtless one, if not the only, object of the section was to compel the officer to maintain his residence where litigants might expeditiously and with as little expense as possible, have access to him for the transaction of official business. Bearing this in mind, it is quite clear that “residence" here means an actual, as distinguished from a legal or constructive, residence, or, its equivalent, domicile; and it is equally certain that, thus far in defendant’s second term, he has * riot complied with this mandatory provision byresiding where it commands. This section, however, should be given a reasonable and not a purely technical or literal interpretation-For instance, no one would say that it was necessary for a district judge actually to reside and be physically present in his judicial district every hour, or day, or week, or month, or continuously every year during his term of office. If, however, he has removed his actual residence from his district, and does not purpose to return, or intends to maintain his actual residence outside his district indefinitely, or for any considerable portion of his term, the section would be ignored, the office become vacant, and the incumbent might be ousted because of such misconduct. Defendant was elected to the office in November of 1900, and entered upon the discharge of his duties on the 8th of January, 1901, and this proceeding was instituted on the 9th of the following September, about eight months after the beginning of his term. The statement of facts shows that the only reason he has not continuously, or at all, maintained ' his — 548 — actual residence within his judicial district, is because his health is such that it became necessary for him to be at a lower elevation for as much of the time as his actual presence was not needed in his judicial district for the discharge of his official duties; and it is only a fair and reasonable construction, we think, of the admitted facts, to say, and we shall so hold, that it is his bona fide intention, as soon as his health will permit, which he hopes will soon be realized, to return to Leadville in his district for the purpose of there maintaining his actual residence. It is true that there is some indefiniteness about this intention so to restore his actual residence within his district, and plaintiff argues that it is a shadowy hope and nothing more, which defendant has, that he may, at some future and indefinite time there re-establish it. This indefiniteness arises, however, out of the necessities of the case; but, we think it would be a strained construction of the language, and a harsh rule to enforce within eight months after plaintiff’s induction into office, to say that because he had not during that time on account of the state of his health, actually resided in his judicial district, and because thus early in his term it is not entirely certain that'at some definite future date he would return there, he should therefore be ousted from office. . We do not say that this indefinite absence or failure to re-establish within his district, and there maintain his actual residence, or its maintenance elsewhere, might not be prolonged for a sufficient time to warrant defendant’s removal from office. Indeed such flagrant non-compliance with a condition of official tenure imperative in its character should be attended by such consequences. And we also observe that his naked declaration of intention would not, of itself, be conclusive of the question, But we are not disposed, and for the reasons indicated, under the facts as they now appear — 549 — to impose such penalty for the remissaess that has already occurred in this respect. We have not hastily or without thorough examination of the able briefs of counsel, followed by full consultation and consideration, reached this conclusion. We are not indifferent to the vigorous argument of counsel for relator that the people of a judicial district have a right to expect and insist upon the maintenance by their district judge of his actual residence at some place within his judicial district, where, at all reasonable times and as cheaply as practicable, access to him may be had by litigants whose business he should, at all seasonable times, be on hand to dispose of as the law directs, and as they have the unquestioned right _to demand. And we also appreciate the potency and soundness of the further argument that if an officeholder finds that his health will be, impaired, or his life jeopardized, by continuing his residence within his district, he ought at once, after that fact is revealed to him, voluntarily to resign and give way to some one who can comply with the mandatory provision of the organic act. The fact that it is found in the constitution, and that it is mandatory—and all persons will concede that it should be obeyed,—is of itself a sufficient justification for this feeling. And yet the defendant has rights which the court should not ignore. He was legally elected to the office by a plurality of the electors, and it is only because of a material violation of some provision of the constitution or laws, for the violation of which a vacancy in the office is the penalty, that defendant should be removed. And although the rule, as we have said, requires him clearly to show a continuing right to hold, this rule is in entire harmony with another of equal potency, which — 550 — is that it is only for some substantial misconduct upon his part that the severe penalty of an ouster should be visited upon him. The rule heretofore issued to show cause is discharged, and the proceeding dismissed. Writ dismissed.