Mauff v. People

Mr. Justice Baieey delivered the opinion of the court: The suit is in mandamus by the people on the relation of the chairman of the republican city central, committee of the republican party of the city and county of Denver, wherein the chairman of the democratic central committee of the democratic party of the same municipality, by proper averments, is shown to have a like interest, and entitled to the same relief to which the Republican chairman is entitled, if any, against Albert E. Mauff and others, constituting the election commission of the city and county of Denver. It is sought to compel the — 564 — commission to select, from names submitted by the respective 'above-named chairmen, a temporary registration committee of three for each precinct in that territory, the members of which will become election judges at the May, 19x2, election, under the law of 1911 governing such matters, which a majority of the commission declined to do. The question is whether the commission is subject to and shall be guided by the state statutes, respecting the performance of its duties regarding- the control and conduct of elections. Plaintiff had judgment below and the defendants bring the case here on error,seeking a reversal thereof. Disregarding technical objections, as both parties desire and public interest requires, that the controversy be disposed of promptly on its merits, we proceed to thus consider and determine it. If by article XX of the constitution. the city and county of Denver is freed from the constitution and general laws of the state concerning elections, then by charter the people of that political body may proceed to fix the- qualifications of electors therein, provide a complete system for the conduct of elections, declare "what shall constitute an offense against the laws so enacted, prescribe punishment therefor, say how and in what courts election contests shall be waged, and in short, upon the entire subject of elections, which it requires no- argument to show, in the very nature of things is of more than 'local concern, may act independently of the provisions of the state constitution and the general laws relating thereto. A construction of this article that leads to a result so absurd and utterly impossible is palpably wrong and should nqt have the sanction or approval of the courts. That the entire state is interested in having the qualifications of electors, offenses against election laws and, .punishments therefor, methods of conducting election contests, pro — 565 — visions for the preservation of the purity of the ballot, fixed 'and defined' throughout the state by uniform laws, and that the sovereign power of the state alone can do this, seems so plain as to amount practically to^ a demonstration. The state constitution declares that the general assembly shall pass laws to guard against abuses of the elective’ franchise and to secure the purity of elections, and statutes have been enacted in compliance with this mandate. _ It is not possible that in the city and county of Denver this provision of the constitution, and the wise, wholesome and beneficient laws passed pursuant thereto, have been swept aside, that they are no longer in force there, and that the people of that locality are in this respect freed therefrom and have ceased to be subject thereto. Those laws, and the above referred to provision of the constitution, with others thereof, concerning elections and the exercise of the elective franchise, were in force in that territory prior to the adoption of article XX, and unless we find something therein setting them aside they are still so in force. Tn People ex rel. v. Sours, 31 Colo., page 369, it was contended that article XX displaces and was intended to displace the constitution and the laws of the general assembly, and to give to the people of the city and county of Denver a free hand in all things, with the exclusive power to make, alter and revise their charter in any and every particular; but in the opinion in that case, emphatically' denying that contention, this court, speaking through Mr. Justice Steele, said: “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 — 566 — 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. * * * 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 sub-division of the state, such officers as may 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. * * * 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, as 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.” And in People ex rel. v. Cassiday, 50 Colo. 503, at page 509, discussing- matters bearing directly on this same proposition, it is said: “The people of the city and county of Denver have not been given, and do not have, the power by charter to in any way change the duties of governmental officers, so far as they relate to state and county affairs, and there can be no ground for such contention if article XX be properly read and understood. The city and count}'- of Denver has not been freed from the constitution. It. is as much subject to it as any other part of the state. Ar567 tide XX is a part of the constitution. Upon its adoption certain portions of the constitution, as it theretofore existed, became inapplicable to this particular territory, because of the express provision of the new article. This article, to the extent which it undertook to do so, being the last expression of the people upon the subject, modified the constitution so far as it applied to the territory in question, and certain provisions thereof became inapplicable therein. Article XX is a grant of power to the people of the city and county of Denver, where theretofore no power in that respect existed, to do certain specific things, relative to the designation of agencies to discharge in that territory governmental duties fixed by the constitution and general laws. They have just such power and authority in this behalf as the article gives them, no more, no less.” And again, at page 514, in that opinion, it is said: “As matters now stand, there is nothing whatever in article XX which gives to the people of the city and county of Denver power to legislate upon anything whatever. concerning matters of state and county governmental import, except merely the designation of certain agents to perform therein the acts and duties incident thereto. It may be that the people of the city and county of Denver have, in some particulars, by their charter provisions, exceeded the grant of power given them, and if so. those matters are for correction in proper proceedings to that end. No such questions are now before this court, either for consideration or decision.” Also again, at page 509 of that opinion, it is said: “All that article XX purports to do relative fi> county offices is to provide that the people of the city and County of Denver, through their charter, shall designate the agencies, which are to discharge the respective duties and — 568 — functions which pertain to them. There is no warrant or authority, in article XX to the people of the city and county of Denver to alter, change or dispense with such acts and duties. They remain, as before, subject to the constitution and general laws, and are exclusively under the control of the legislature.” It is manifest, from these excerpts from former opinions of this court, that no part of the constitution of the state has been set aside by article XX, unless directly so, or by necessary implication, through some one or more provisions of that article. Where the constitution and general laws of the state have not been, either by direct provision or necessary implication, set aside, they are as much in force in the city and county of Denver as they are in other portions of the state. The purpose of article XX was to give to the people of the city and county of Denver exclusive control in matters of local concern only. The people of the city and county of Denver have no power whatever to legislate by their charter upon matters of state and county governmental import and character. The fact that the authority given by article XX to the people of the city and county of Denver to legislate w;as confined and limited solely to local matters was the precise thing that made it possible for the courts to uphold and enforce it. If by article XX it had been undertaken to free the people of the city and county of Denver from the state constitution, from statute law, and from the authority of the general assembly, respecting matters other than those purely of local concern, that article could not have been upheld. Keeping in mind the fact that the state constitution is a limitation upon the powers of the general assembly, and that but for'inhibitions found therein its legislative power is plenary, let us examine article XX and see — 569 — whether by its express terms, or by implication, necessary ó.r otherwise, a limit of any sort is placed upon the general assembly respecting the enactment of laws to govern and control the conduct of elections in the city and county of Denver. We search this article in vain for a single' expression which hints at or even suggests any such limitation. There is no provision in article XX by which, upon any pretext, either directly or indirectly, it can be said that it is sought thereby to in any respect change the constitution of the state, or the laws in force under it, upon the subject of elections, except as hereinafter pointed out. The only special power thereby given the city and county of Denver upon this subject, beside permitting therein the use at elections of the automatic voting register, is to fix the term, which includes the time of election, and to designate the officers who, as agents, are to' perform in that municipality state and county governmental functions. Except as thus modified, the state constitution and general laws concerning elections remain in full force and effect, and are as much applicable to the city and county of Denver as to any other section of the state. The contention is that the exclusive power having-been given to the citizens of the city and county of Denver, by article XX, to amend their charter, or to adopt a new charter, or to adopt any measure as therein provided, the power.is with the people to provide for the conduct and control of elections as they may see fit. By every decision of this court, from the Sours case, supra, down to and including- the case of Hilts, et al. v. Markey, et al., decided February 21, 1912, which is the last expression upon this subject, it has been held that this power extends to nothing except matters of local concern. All elections are; public in character, and are of governmental and — 570 — state-wide importance, rather than of local or municipaj interest merely, hence must be under the control and regulation of the state constitution and general laws,..;.The right to vote comes from the sovereign authority of '.the state, and that right can only be fully preserved and; enforced by the same authority. Every citizen of .the -.commonwealth is interested in the purity of elections, which consists chiefly in affording qualified electors an opportunity to vote and have their votes counted, and in- preventing those not qualified from voting. It means protection, in the exercise of this right, to those entitled to have it. The right of the elector to be thus safeguarded carries with it the corresponding duty on the part of. the state to furnish all needed protection. It is a matter- of general public concern that, at all elections, such safeguards be afforded. The state at large is interested-in the purity of every election, municipal or otherwise, -and it must be apparent that it is only through the power -of the sovereign state itself that purity in elections .can be obtained. In determining what is of local, and what is of state interest in this connection, the right of the elector to the protection of the state, which cannot be fairly doubted, is a potent factor. The distinction between the subject matter of this suit and the matters involved in Denver v. Hallett, 34 Colo. 393, and Londoner v. City, 119 Pac. (Colo.) 156, is that in the latter cases purely local matters were under consideration, while here the matter involved is one of public and general interest. That the people of the city and count)' of Denver cannot legislate through their charter upon the latter subject is settled by all of our decisions. The vital question here involved is whether the regulation, control and management of elections is of govern — 571 — mental state import and character ? This being answered in the .affirmative, and the judgment of the court below; béing; in harmony with that view, is affirmed. Judgment affirmed. Decision en banc. CfiiEF Justice Campbeee not participating. Mr. Justice Musser dissenting.