People ex rel. Attorney General v. Johnson

Mr. Justice Maxwell delivered the opinion of the court. The information in quo warranto filed by leave of court by the people of the state of Colorado on the relation of N. C. Miller, the attorney general of the state, charged that one Henry V. Johnson, a citizen of said state and a resident and qualified elector of the city and county of Denver, therein, did on, to wit: the 1st day of June, 1904, without any warrant or authority of law usurp and intrude himself into the office of county judge of the city and county of Denver and ever since has continued and still does continue to unlawfully usurp and intrude himself into said office of county judge.of the city and county of Denver; that he, the said Henry V. Johnson, is now unlawfully holding a regular term of the county court of said city and county of Denver, and is still usurping and intruding into and unlawfully holding and exercising the functions of judge of the county court in said city and county of Denver, and called upon him to answer by what warrant he claims to hold such office or exercise the powers, — 145 — perform the duties and receive the fees and emoluments thereof, and that he he ousted and excluded therefrom. In response to a rule to show cause, duly served, respondent filed his answer and return, wherefrom it appeal's in substance that he is a duly qualified elector in and for the city and county of Denver and in every way qualified to hold the office of county judge of said city and county; that under and by virtue of article XX of the constitution of the state of Colorado, pursuant to an election ordered by ordinance of the city council of Denver, a special election was held at which members of a charter convention were elected, which charter convention framed a charter for the city and county of Denver in harmony with said article XX of the constitution; that on the 29th of March, 1904, said charter so framed by said charter convention was submitted to the qualified electors of the city and county of Denver, and by such qualified electors was approved and became and was and is the charter of said city and county of Denver; that in and by said charter it was provided that the county court of the city and county of Denver should consist of two judges; that at the next city and county election two judges should be elected, one of whom should be for the short term; that the judge elected for the short term should within thirty days after his election qualify and enter upon the duties of his office and should hold such office until the second Monday of January, 1907; that the judge elected for the long term should enter upon the duties of his office on the second Tuesday of January, 1905, and hold office for a term of four years; that the judges of the county court should be elected, one every two years, each for a term of four years; that such judges should be elected at the same time and manner as other officers of the city and county of Denver at the general city. — 146 — and county election next preceding the expiration of their respective terms of office; that in case of vacancy occurring from any cause the mayor by and with the consent of the board of supervisors should appoint a person possessing the qualifications herein provided for county judges, to act as such judge until his successor is duly elected and qualified; that said charter provided that a general city and county election should be. held on the third Tuesday in May, being the 17th of May, 1904, and every two years thereafter; that at the first city and county election there should be elected a mayor, auditor, assessor, treasurer, clerk, recorder, coroner, county superintendent of schools, 2 judges of the county court, 16 aldermen, 7 supervisors, 3 justices of the peace, 3 constables; that the terms of all elective officers shall commence on the first secular day of June following their election, and shall be four years and until their successors are elected and qualified; that at the election held May 17,1904, respondent was elected to the office of county judge, and within thirty days after such election qualified and entered upon the duties of said office of county judge, and is now holding said office and discharging the duties thereof pursuant to such election; denies that he did usurp and intrude himself into the office of county judge of the city and county of Denver and avers that he holds the same and discharges the duties of said office under full warrant and authority of law and by virtue of his election as hereinbefore stated. To this answer and return the people filed a general demurrer, whereby the constitutionality of the charter provisions relied upon by the respondent is brought directly in issue. This is one of eight cases now pending in this court of like character involving the title to the following county offices in the city and county of Denver, — 147 — to wit: county judge, county assessor, county clerk and ex officio recorder, treasurer, constable, sheriff, county commissioners and justices of the peace. All of these cases were argued orally and submitted at the same time, and all involve substantially the same questions except that this case involves the further question whether the charter convention was authorized to increase the number of county judges to two. In the consideration which the court has given these cases all of the briefs and arguments filed by counsel in all of the cases and all authorities cited have been thoroughly, and exhaustively considered by the court. Respondents in these cases are represented by an array- of eminent counsel all of whom have filed elaborate, exhaustive and learned briefs and arguments, covering every conceivable phase of every question which might be presented to the consideration of the court. In a multitude of counsel there is wisdom and necessarily a difference of opinion upon matters under consideration. If it should transpire that this opinion attempts to set forth the views of counsel as presented in the briefs and arguments filed, as we understand them, which do not coincide with the views of counsel reading the opinion, let not the opinion be criticised upon this account alone until at least the reader has carefully read and analyzed the 1,500 pages of briefs and arguments filed. It is the contention of the relator that the charter convention of the city and county of Denver provided for by article XX cannot legislate in any particular as to the county court or the county judge or any other office, officer or matter not of purely local or municipal concern; that the constitution provides for one county judge in each county of the state and — 148 — requires that all laws relating to' courts shall be general and of uniform operation throughout the state, and that the organization, jurisdiction, powers, proceedings and practice of all the courts of the same class or grade so far as regulated by law shall be uniform (Constitution, secs. 22, 28, art. VI); that the charter provisions assuming to increase the number of county judges-of the city and county of Denver, to change the time of election of the county judge and time of the beginning and ending of his term, and to legislate in any particular as to the county judge of the county court are unconstitutional and void; that there is nothing in article XX of the constitution . which shows an intention to change the scheme of government-in this particular, and if there were, it would be unconstitutional, and that there is nothing in article XX which shows any intention.to grant any power to the charter convention to supersede the provisions of the constitution or general' statutes relating to the county or the state government, and therefore if the charter convention has legislated or attempted to legislate upon any matter which supersedes the provisions of the constitution or general statutes such legislation is unconstitutional and void. In our opinion the contention of relator is fully sustained by the majority opinion of the court in People v. Sours, 31 Colo. 369, and in the opinion of the present chief justice specially concurring. At page 385 Mr.- Justice Steele in delivering the majority opinion says: “Counsel say: ‘Had it been the intention that the constitution and laws should be in force in this territory, this instrument would have so stated. The language of the above provisions is plain and unambiguous. It has been said that in construing a constitutional provision it will be presumed that every — 149 — word was weighed and its meaning carefully considered before its insertion in the instrument; and this instrument says that the city and county of. Denver can adopt any measure and shall always have the exclusive power to make, alter and revise their charter. That means everything. If not, why not? This charter is to be the organic law. A legislative act is now the charter of the city of Denver, and the constitution of this state and the laws thereof constitute the organic law of this county. But this instrument changes all this and says that the charter as framed by the charter convention shall not only be the charter of the city and county but shall be the organic law thereof. That language means something. It displaces and was intended to displace the constitution, the laws and the general assembly.’ “If this amendment must be given that construction, it cannot be sustained. Even by «constitutional amendment the people cannot set apart any portion of the state in such manner that that portion of the state shall be freed’from the constitution, or delegate the making of constitutional amendments concerning it to a charter convention, or give to such charter convention the power to prescribe the jurisdiction and duties of public officers with respect to state government as distinguished from municipal or city government. The duties of judges of the district court, county judges, district attorneys, justices of the peace and generally of county officers are mainly governmental; and so far as they are governmental they may not be controlled by other than state agencies without undermining the very foundation of our government. Under the constitution of the United States the state government must be preserved throughout the entire state; and it can be so preserved only by having within every political subdivision of the state such officers as may — 150 — be necessary to perform the duties assumed by the state government under the general laws as they now exist or as they may hereafter exist. “This distinction between the governmental duties of public officers and their municipal duties is fundamental and therefore is not avoided or affected by the consolidation. “ 'Counties, townships, school districts and road districts do not usually possess corporate powers under special charters; but they exist under general laws of the state which apportion the territory of the state into political divisions for convenience of government and require of the people residing within those divisions the performance of certain public duties as a part of the machinery of the state; and in order that they may be able to perform those duties vest them with certain corporate powers. Whether they shall assume those duties or exercise those powers the people of the political divisions are not allowed the privilege of choice; the legislature assumes this division of the state to be essential in republican government and the duties are imposed as a part of the proper and necessary burden which the citizens must bear in maintaining and perpetuating constitutional liberty.’ — Cooley’s Constitutional Limitations, *240. “ ‘A municipal corporation proper is created mainly for the interest, advantage and convenience of the locality and its people; a county organization is created almost exclusively with a view to the policy of the state at large, for the purposes of political organization and civil administration in matters of finance, of education, of provision for the poor, of military organization, of the means of travel and transport, and especially for the general -administration of justice. With scarcely an 'exception all the powers and functions of the county organization have — 151 — a direct and exclusive reference to the general policy of the state and are in fact but a branch of the general administration of that policy.’ — 1 Dillon’s Municipal Corporations, § 23. “The respondent’s construction, however, is not that placed upon the amendment by the counsel for the petitioners, or, we assume, by the people. The provision that ‘Every charter shall designate the officers who shall respectively perform the acts and duties required of county officers to be done by the constitution or by the general law so far as applicable’ completely contradicts the assumption that the amendment regards such duties as being subject to local regulation and control. The amendment is to be considered as a whole in view of its expressed purpose .of securing to the people of Denver absolute freedom from legislative interference in matters of local concern; and so considered and interpreted, we find nothing in it subversive of the state government or repugnant to the constitution of the United States.” At page 410 Mr. Justice Gabbert says: “ * * * the whole scope and purpose of the amendment was to provide home rule for certain cities with respect to certain governmental matters local in their nature. This is apparent from the contents of the amendment itself as well as the provisions designating what should appear upon the official ballot in order to enable the electors to vote for or against its adoption. Its several provisions all relate to this one general object and are designed to accomplish this one purpose in so far as they relate to cities designated in the amendment either by name or class.” And in this connection, the following language of Mr. Justice Gabbert is significant (page 411): “What particular subjects, however, relating to govern — 152 — mental affairs are embraced in the amendment is a matter for the convention assembled to form a charter to most carefully consider. It should also be borne in mind that there may be provisions of the constitution other than article 20 which must be observed in the creation of a charter.” The foregoing construction of article XX was interpreted and approved by the unanimous opinion of this court in Parsons v. People, 32 Colo. 221, 76 Pac. 672, where Mr. Justice Campbell said: “Neither is this revenue act of 1902 in violation of any provision of article XX. In the majority opinion of this court, in People v. Sours, 31 Colo. 369, 74 Pac. 167, it was clearly indicated that the general scheme of government therein contemplated is restricted to that of the municipality proper, and does not intrench upon county or state government. It does not purport to nullify the constitution or general laws of the state in so far as they pertain to county or state government or attempt to interfere with the power of the state in raising state revenue." The above quoted language from the majority opinion in the Sours case was used in disposing of the "second objection” urged by counsel for respondent in their argument that article XX was inoperative and void. This objection as stated on page 383 of the opinion is as follows: “2. It violates the provision of section 4 of the enabling act providing that the constitution shall be republican in form * * * and not be repugnant to the constitution of the United States and the principles of the Declaration of Independence." The “above provisions” referred to in the opinion as stated by counsel are: “Sec. 2. The officers of the city and county of Denver shall be such as by appointment or election may be provided for by the charter; and the juris — 153 — diction, term of office, duties and qualifications of all such, officers shall be such as in the charter may be provided. ’ ’ “Sec. 4. The people of the city and county of Denver are hereby vested with and they shall always have the exclusive power in the making, revising or amending their charter. ’ ’ And further on: “Whereupon it shall become the charter of the city and county of Denver and shall become the organic law thereof.” “Sec. 5. The citizens of the city and county of Denver shall have the exclusive power to- amend their charter or to adopt a new charter, or to adopt any measure as herein provided.” Thus it is seen the precise question here involved was ruled by the majority opinion in the Sours case. We might without further discussion conclude this opinion at this point basing our conclusions upon the ground that the question here presented under the authorities above cited is not an open one but is and must be held to be stare decisis. The ability, learning and force with which counsel representing respondent present their views lead us to state their position, the argument in support thereof, and to point out what we deem to be the fallacy of both position and argument. In the first place, counsel concede that the county judge and other county officers down to and including constable are state officers in that they derive their existence and powers from the constitution and general laws and perform state and governmental functions. The position taken by respondent is, the charter having designated ‘ ‘ the officers who shall respectively perform the acts and duties required of county officers to be done by the constitution or by general la.w, ’ ’ notwithstanding the fact that the county judge and — 154 — other county officers are constitutional officers performing state and governmental functions, and notwithstanding the fact that the powers, jurisdiction and procedure of the county court are prescribed by the constitution and general laws beyond the interference of the charter, the agencies for the performance of such acts and duties having been designated by the charter, the constitution is complied with and a republican form of government preserved. In other words, SO' long as the charter designates some one who shall perform the acts and duties of county judge and other county officers, respondent contends that the charter convention can do what it pleases with the county court and other county officers. It may abolish them, it may increase the number of incumbents, it may increase the term of office indefinitely, it may change the time of election or abolish elections entirely, making the office appointive, it may vest the appointing’ power in one man or any number of men, or it may qualify and designate one man to perform the acts and duties of all county officers. Referring now to the construction placed by this court on article XX, the learned justice who wrote the majority opinion in the Sours case used this language: “If this amendment must be given that construction, it cannot be sustained. ’ ’ What construction? Unquestionably the construction contended for by counsel who were seeking to establish the invalidity of the amendment, the construction stated in the quotation immediately preceding and which called forth the declaration above quoted. The construction contended for here — a construction which, as expressed by counsel for respondent herein, would “cut loose the city and county of Denver from any and all constitutional limitations and restrictions and make .the voice of the people, — 155 — whether deliberately or hysterically expressed, the law in that locality.” In the Sours ease the court repudiated such construction and upheld the validity of the amendment, saying: “The amendment is to be considered as a whole in view of its expressed purpose of securing to the people of Denver, absolute freedom from legislative interference in matters of local concern; and so considered and interpreted we find nothing in it subversive of the state government or repugnant to the constitution of the United States.” If the majority of the court in the Sours case had been of the opinion that article XX had for its purpose the securing to the people of Denver absolute freedom from legislative interference in all matters relating to county and state governmental offices, officers and functions, the inevitable conclusion would liaA^e followed that the amendment would have been held subversive of a republican form of government and repugnant to the constitution of the United States. The charter adopted March 29, 1904, increases the number of county judges to two, changes the time of election, changes the time when the term of office shall begin, provides that the qualifications of county judges shall be the same as district judges; that in case of vacancy the mayor, with the consent of the board of supervisors, shall appoint; changes the salary and manner of payment; and in addition to the above, confers upon the county court jurisdiction in some matters unnecessary to consider, all of which provisions are contrary to article VI of the constitution as amended. The same rule of construction applied by-this court to article XX must be applied to the charter framed under that article. — 156 — This court having held that article XX could not he sustained if it purported to cut loose the city and county of Denver from any and all constitutional or legislative limitations and restrictions, it must follow that a charter framed thereunder, in so far as it purports to accomplish the same thing, cannot be maintained. Again, referring to the majority opinion in the Sours case: “Even by constitutional amendment the people ■cannot set apart any portion of the state in such manner that that portion of the state shall be freed from the constitution.” In what respect “freed from the constitution?” To what extent ‘ ‘ freed from the constitution ? ” May the people of any portion of the state be freed from any article or any section of any article of the consti-' tution? If yea, where and when must the freeing process cease? In Ames v. People, 26 Colo. 83, 109, this court has said: ‘ ‘ The test of the constitutionality of a statute is not what has been done, but what by its authority may be done. ’ ’ To concede that article XX authorizes a charter convention to legislate upon any subject whatever, in contravention of any of the provisions of the constitution relative to governmental or state matters or to county or state offices and officers, is to concede that such convention might displace the constitution in every respect, and the charter, being the organic law of the city and county, would thereby become supreme within the territory included in the boundaries of the city and county; hence we would have a portion of the state freed from the constitution — over which the state had no right to legislate — which could have no- interest whatever ih any legislation which might be' enacted by the state relating to state and governmental affairs. In short, an imperium in — 157 — imperio, a condition which cannot be brought about or exist even by constitutional amendment, as emphatically decided by the majority opinion in the Sours case. This is not a question of whether a mere change in the term of office and time of election of an officer performing governmental duties is an act subversive of a republican form of government. The question is, can the people of the state, by constitutional amendment, set apart any portion of the state and vest the citizens thereof with power to legislate upon matters other than those purely local and strictly municipal in their character'? In the Sours ca.se this court has said, that this could not be done for the reason that such act would be subversive of a’ republican form of government,repugnant to the constitution of the United States and violative of the compact existing between the state and federal government. .If such plenary power to legislate cannot be granted, a single act of legislation would be invalid, even though it be legislation changing the term of office, and the time of election of county officers performing state and governmental functions. To concede the right to legislate upon such matters in the slightest particular must be to concede the right to legislate on all matters, and we would have a community of citizens representing one-third of the population of the state legislating for themselves upon all matters, and not subject to the general legislation of the state. Such a condition is the logical result of permitting the first act of inhibited legislation. If the people of Denver by article XX are authorized, through a charter convention, to change the term of office, time of election and number of incumbents of one state or county governmental office, they are — 158 — authorized to change all of them, and in any respect they may see fit. The tenure of office might be made for life with power to name a successor, in which event there would be no election. Ten county judges instead of one might be appointed, or the office might be abolished, and the mayor, the sheriff or any other officer designated to perform the duties of county judge, or one person might be designated to perform all the duties of all county officers. Confining the joowers of the charter convention to legislate upon matters purely local and municipal in character, as was done by the court in the Sours case, avoids the contingency above outlined. In a case pending in this court in which respondent herein is named as respondent, wherein was involved the right of the county court of the city and county of Denver to hear an election contest of the office of mayor, counsel appearing for respondent here appear therein in the same capacity, and have filed a brief, portions of which are instructive and interesting, as to the views of counsel at the time that brief was prepared. “And in the exercise of such special powers as were conferred upon the body politic therein contemplated and mentioned, it was clearly the intent of the article [20] that the general laws and constitution of the state were to be followed. The mere grant of a special power does not carry with it any authority to exercise it in a manner not contemplated by la.w. The affairs of the city of Denver had for years been a favorite subject of legislation-.by the general assembly of the state. The people of Denver were governed by the state even in matters peculiarly of local concern and pertaining to the conduct of the municipality. In such affairs the legislature was the continuous and sole arbiter of our municipal fortunes, and to remedy this evil the article in question — 159 — was submitted and adopted. When its purpose is considered, it will be found helpful in ascertaining the extent to which the article was carried. Home rule had a well defined meaning. It meant that as to all the affairs of the city and county of Denver which affected the relations of the citizens with their local government they should be freed from state interference, regulation or control; that the system of public improvements, the building of streets or alleys, the appointment of officials, the designation of their duties and how they should be performed, and all other matters purely of local interest, advantage and convenience should be left to the people of Denver for their own determination. This did not in anywise relieve them from the operation of the general law or' constitution of the state, nor was it desired that such a condition should exist. The laws of the state and its constitution were as much in force after the adoption of the 20th article as before. All public and governmental duties which the people of the new body politic or the corporation itself were to perform were still binding upon them. The policy of the state government or of the people in reference to the state government was still to be fixed and determined by general law equally in force, effect and operation in every part of the state. The 20th article did not set apart a territorial subdivision of the state, tuhere people tvere to be freed from the general laius binding upon all other portions of the state. It did not attempt to set up a neiv government-which teas independent of the laivmaking department of the state and invested with authority to govern itself as it might see fit. It had no power to inaugurate or establish a revenue or judicial system of its own without regard to other portions of the state. Whatever public laws the general assembly might see fit to enact were to apply here as elsewhere, and to affect the — 160 — citizens of Denver as they did the citizens of other communities and in the same manner. This was not to be a state within a state, but a republican form of government was to exist throughout the entire state. The purpose of the amendment was to give us free,dom in local municipal, matters, but not to relieve us from the general laws or other portions of the constitution in public affairs or governmental matters. We icere free to act in matters of local concern, not in matters of public governmental 'or state concern. Home rule for cities means home rule in strictly city affairs. While we were given special powers not enjoyed by all other portions of the state, these powers so conferred were of a nature that could not affect us as a part of the state. We were to enjoy self-government in all relations purely local and municipal which did not bring us into contact with the state at large or its political and territorial subdivisions as such. All general systems of state policy were still in force here and unaffected by the 20th article of the constitution. Where that instrument had provided the manner in which governmental acts were to be performed and bad established a system of procedure, the 20th article did not relieve the city and county of Denver from their operation. While we were enabled to enjoy certain municipal' privileges, we were still bound by all governmental measures which the state, might see fit to adopt and enforce. It was therefore with reference to these purely local and municipal affairs that the charter convention was authorized to act. * * * “To state the matter in another form, so far as the municipality proper was concerned the charter might prescribe the jurisdiction of the officers created by it so long as that jurisdiction was limited to municipal affairs and not in conflict with either the general law of the state or the constitution, but where the — 161 — constitution or the general law had spoken upon matters of a public and governmental nature not purely municipal in their scope, the 20th article did not affect them.” If we are capable of comprehending the English language, the foregoing quotation coincides with the views expressed in the majority opinion in the Sours ease, which views must be and are decisive of this case. "The constitution is not to be made to mean one thing at one time and another at some subsequent time when the circumstances may have so changed as perhaps to malee a different rule in the case seem desirable.” — People v. Scott, 9 Colo. 433. Counsel for respondent seek to avoid the force and effect of the plain, unambiguous and positive language of the court in the Sours case by arguing that the learned justice who wrote the opinion of the majority had in mind the “jurisdiction and duties of public officers ’ ’ only, and as they say that no attempt has been made under the charter to legislate upon the jurisdiction and duties of public officers, therefore the language of the learned justice is not applicable to that particular feature of the charter here under discussion. A close analysis of the language of the opinion discloses that there are three separate and distinct things which the people cannot do even by constitutional amendment: 1. Free any portion of the state from the operation of the constitution. 2. Delegate to a charter convention the making of constitutional amendments. 3. Give to a charter convention the power to prescribe the jurisdiction and duties of public officers with respect to state government as distinguished from the municipal or city government. — 162 — Under the language used no one of the three things can be done by the people, and it follows that no portion of any one of them can be done; that no portion of the state can be freed from any provision of the constitution; that the first step along the road to the accomplishment of either one of the three prohibited acts is just as much prohibited as the second or third or last steps, and it is the duty of this court to promptly and emphatically call an immediate halt and a retreat whenever it is in a proper manner brought to the attention of the court that the first step has been taken or attempted along the forbidden highway. It should constantly be borne in mind that article XX provides that cities of the first and second class may proceed thereunder, and who can say that if it should appear to other cities of the state that the charter of the city and county of Denver permitted the citizens thereof to depart from the straight and narrow path of constitutional limitation we might not have the spectacle of a procession of cities attempting to free themselves from the limitations of the constitution which might be irksome to them. Such a spectacle or condition would be intolerable, and is prevented by the ruling of this court in the Sours case. The view we have taken of this case makes it unnecessary to consider other grounds, plausible and of much force, urged by learned counsel for the people and respondent, or to prolong this opinion by a discussion of many principles of law and authorities cited in support thereof to which our attention has been called by counsel for both parties. Our conclusions are that the proposition presented by this record is not and since the decision of the Sours case has not been an open question; that it is there held that the authority of the charter conven — 163 — tion to legislate under article XX of the constitution is limited to matters purely local and municipal in their character; that the provisions of the charter adopted March 29, 1.904, increasing’ the number of judges of the county court to two and changing the time of election of said county judges to May 17, 1904, are invalid and inoperative; that respondent is not entitled to hold and exercise the office of county judge of the city and county of Denver; that the demurrer to the answer and return of respondent should be and is sustained. This being an original proceeding in this court it is, therefore, considered and adjudged that the respondent, Henry Y. Johnson, is guilty of usurping, intruding into and unlawfully holding and exercising the office of county judge of the city and county of Denver, state of Colorado, and that by the judgment of this court he, the said Henry V. Johnson, be ousted and excluded from said office and franchise and any and all exercise thereof, and that he pay the costs of this proceeding. Judgment accordingly. Decision en banc.