Laverty v. Straub

Mr. Justice Burke delivered the opinion of the court. Plaintiff in error, hereinafter referred to as Laverty, is a member and president of the city council of the City and County of Denver. Defendants in error, hereinafter referred to as the council, or defendants, are the other members thereof. The question before us is the authority of the council to try and expel Laverty. November 16, 1942, defendants passed a resolution reciting that Laverty “is said to have been convicted of a crime in the district court of the second judicial district of the State of Colorado,” that the council deemed it expedient that he “should be brought to trial as to his right and fitness to continue to hold the presidency of this council and as to his right and fitness to continue to be a member thereof,” and setting November 20, following, as the date of such trial. This resolution was [313] signed by defendants and duly attested. November 19, Laverty filed an action in injunction to restrain defendants from proceeding accordingly. A temporary restraining order was issued. Defendants moved to dismiss and on November 28, that motion was sustained. To review the judgment entered accordingly Laverty prosecutes this writ and asks that it be made a supersedeas. By agreement of counsel it was ordered that final judgment be entered on the application for the writ. The cause was accordingly briefed and argued orally and submitted. The brief of counsel for Laverty opens with an admission that he was recently convicted by the district court of the City and County of Denver of the crime of “receiving stolen goods.” The argument then begins with the following statement: “While the complaint raised many questions, we have determined to abandon all questions of procedure concerning the introduction and passage of the resolution, and rely only upon the proposition that the council does not have the authority any longer to try or expel the plaintiff. To this, the city attorney has agreed.” The cause was so argued. This then is the sole question for our determination and would in any event be the underlying and fundamental. question in the cause. Denver is a home rule city organized under Amendment Twenty to our Constitution whereby there is conferred upon it all power in local and municipal matters which the legislature could grant. Watson v. Fort Collins, 86 Colo. 305, 281 Pac. 355; Londoner v. Denver, 52 Colo. 15, 119 Pac. 156. Unless otherwise limited these powers may be exercised through the legislative department of the city. People v. Pickens, 91 Colo. 109, 12 P. (2d) 349. It is' undisputed that the power here sought to be exercised deals with a purely local and municipal matter and that its exercise otherwise than by the city council is not limited by Constitution or charter. [314] The power to remove a member or officer of a legislative body is a legislative power. In re Speakership, 15 Colo. 520, 530, 25 Pac. 707. Hence the council has power to remove a member and, since the greater includes the less, has the power to remove its president. As a precautionary measure we again observe that this is the sole question before us. Its resolution has no relation to the proper method to be followed, the sufficiency of charges, the requisite notice, or other collateral questions. Ample relief is available to Laverty from prejudicial error, if any, committed in relation thereto. Board of Aldermen of Denver v. Darrow, 13 Colo. 460, 22 Pac. 784. The judgment is affirmed. Mr. Justice Hilliard dissents.