People ex rel. Fairall v. Sabin

Mr. Justice Denison delivered the opinion of the court. Sabin was acting as public trustee of the City and County of Denver under appointment by the Hon. Oliver H. Shoup, Governor. His Excellency the present Governor appointed Fairall, the relator, as such trustee. Sabin declined to surrender the office and Fairall then brought quo warranto in the district court, where he was defeated and' he now brings the case here on error. The question before the district court was which Governor had the right of appointment. After the oral argument in this court we asked for briefs and arguments on the question of the right of the mayor of the City and County of Denver, under the twentieth amendment to the Constitution and the Charter, to appoint some official to perform the duties of public trustee in that municipality, and the point was argued by counsel for the parties, the Attorney General, the City Attorney and, at request of the court, by Amici Curiae. A majority of the court considered that Governor Sweet’s appointment was authorized and proper and judgment and opinion were rendered accordingly. A rehearing was granted, and, upon further consideration, a majority^think that the mayor has the power and therefore, of course, the sole power in the matter. Section 2 of Article XX of the state Constitution provides 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.” The office of public trustee is a county office. Chambers v. People, 70 Colo. 496, 202 Pac. 1081; Walsh v. People, 72 Colo. 406, 211 Pac. 646. The charter, then, ought to designate an officer to perform its duties in Denver. [547] The present charter of Denver designates various officials who shall respectively perform the duties of various county officers, not, however, including public trustee. Section 156 of the Charter of 1904 contained a sentence which has never been repealed, as follows: In case no officer has been specially mentioned to perform the duties of any county officer, or in case any new county office is created, then such office shall be filled by appointment by the Mayor, who shall appoint thereto some official of the city and county, who shall thereafter perform the acts and duties required by the Constitution or by the general laws to be done by such county officer.” The preceding part of said section 156 designated the officials to perform the duties of certain specified county officers and the sentence quoted was a supplement, definitely intended to provide for the emergencies therein expressed, and, unrepealed, now serves its original purpose. Since the officer to perform the duties of public trustee is not “specially mentioned”, the mayor by the terms of this provision must appoint him. It is claimed that the power to designate by charter, given by article XX, is limited to county offices created by the Constitution, article XIV, section 8, and so does not include the office of public trustee; but we think it includes county offices to be created by the General Assembly, to whom the necessary power* is given by section 12 of that article. The case of Dixon v. People, 53 Colo. 527, 127 Pac. 930, is not inconsistent with this conclusion, both because the only point necessary to that decision and the only point actually adjudicated was that a county judge was not a county officer (see page 530), while a public trustee is; and because even the opinion in that case limits the power of the charter not to “offices created by article XIV” but to those so created “or therein mentioned” (see page 533), which refers as clearly to those created by the Legislature under section 12 as to those created by the Constitution itself in section 8. Similarly, People v. Cassiday, 50 Colo. 503, 117 [548] Pac. 357, and Thrush v. People, 53 Colo. 544, 127 Pac. 937, may be disposed of. It is claimed that the clause giving power to the mayor has been repealed, but there is no claim of an express repeal, it is no more inconsistent with the present charter or with any charter since that of 1904, than with the section of which it was originally a part, and it is essential to the smooth operation of the city government. Without it, sometimes, as in the present case, a charter amendment would be necessary with all its unfortunate expense and delay before any duty of some office could be performed. The commission amendment gave the mayor’s powers to the commission and the so-called Speer amendment restored them to the mayor, saying “the remaining sections or portions of sections of said charter shall be so construed as to harmonize with the provisions of this amendment.” It is claimed that a designation such as that in question is a legislative act. How is! it more so than an appointment to office? A more serious question is whether, under the provision that the charter shall designate, it may say that the mayor shall do so. We think it may. The provision is essential to the proper operation of the city government. Constitutional provisions of this sort carry by implication all powers necessary for the efficient execution of the powers specifically granted; therefore to provide for designation where immediate designation was impracticable was within the reasonable construction of the mandate to designate, even if a general provision designating whomsoever the mayor might appoint would not have been. The result is that the court cannot install the relator but judgment of ouster must go against the respondent. People v. Howlett, 94 Mich. 165, 53 N. W. 1100. The judgment of the district court is reversed with directions to proceed accordingly. Mr. Chief Justice Teller and Mr. Justice Campbell dissent.