People ex rel. Foley v. Montez

Mr. Justice White

delivered the opinion of the court:

Upon application of plaintiff, we assumed original jurisdiction of this proceeding, and issued the alternative writ of mandamus, directed to respondent Montez, as county clerk and recorder of Huerfano county, commanding him to permit the relator Foley, as public examiner of the state, to examine the records, books and files of that office, during the ordinary business hours thereof, or to show cause within a day named, why he had not done so.

The writ shows, inter alia, that relator, Foley, was, and is, the duly appointed, qualified and acting public examiner of this state; that respondent, Montez, was, and is, the county, clerk and recorder of Huerfano county; that, on March 31, 1910, the relator, under instructions from the auditor of the state, at the office of the county clerk and recorder, in the county of Huerfano, requested respondent, as such county clerk and recorder, to permit relator, as such public examiner, to examine the books, records and files of that office during the ordinary business hours thereof; that respondent refused to grant the request, and still refuses to allow relator, as such public .examiner, or otherwise, to make the examination ; and that there is no plain, speedy and adequate remedy in the ordinary course of law.

The return to the alternative writ alleges, substantially, that although relator demanded of respondent permission to examine the books, records and -files of his office, the latter did not refuse the request, but is willing for any responsible person, prompted by honest motives, to make an examination of his office; that there is an action pending in the district court of Huerfano county between the parties hereto, involving the same cause of action as this; that the matters contained in the alternative writ do not show the relator entitled to any relief; that the statute under which relator claims to act as public examiner is unconstitutional; that the relator has not discharged the duties enjoined upon him by the statute creating the office, which entitles him to demand the inspection of respondent’s books, and that such inspection would be of no benefit to relator or the people of the state; that the application to examine is not made in good faith,, and the examination would be by designing and irresponsible persons, who would not report truthfully.

The jurisdiction of this court to grant writs of mandamus and to hear and determine the same, is found in sec. 3 of art. VI of the constitution. "While the power in that respect, there conferred, is apparently unlimited, it, nevertheless, has become the settled rule, that this court will exercise such power, only when it appears some peculiar emergency or exigency exists, or when the questions involved are clearly publici juris,, and then only when satisfied that the issues are not likely to be determined, and the rights of all parties properly protected, and enforced in the lower courts.—Supreme Court Rule 38; The People ex rel. v. Rogers, 12 Colo. 278.

Recognizing this rule, relator set forth facts in his petition for mandamus, which he contends brings the case clearly within the rule. It is alleged that, a petition for mandamus against the respondent, asking the same relief as here, was filed in the district court of Huerfano county on April 4, 1910; that an alternative writ was thereupon granted, returnable April 30th; that respondent made return thereto by motion to quash on the ground, that the act of the general assembly, ch. 192, Session Laws 1909, p. 455, creating the office of public examiner, is unconstitutional ; that on April 30th the motion was argued, and relator, by his counsel, then requested the court to rule on the motion; that the court declined so to do, and granted respondent twenty days in which to file a brief in support of his motion, with an additional five days in which to reply to any brief filed, after the twenty days, by relator; that no brief was filed by respondent within' twenty days; that thereupon, on May 23rd, the attorney general of the state, as counsel for plaintiff, wired the judge of the court as to his decision, and was informed, by wire, that an additional ten days had been given to respondent for filing his brief; that the attorney general thereupon, on May 24th, wrote the judge of the court, that plaintiff did not desire to file a brief, and requested an immediate ruling upon the motion; that on the 26th of May he received the brief of respondent upon the motion, and the day following wrote the judge of the court, stating that no brief would be filed on behalf of plaintiff, and that an immediate ruling was desired; that on June 16th relator was advised by a letter from the clerk of the district court of Huerfano county that the court had, on June 11th, overruled respondent’s motion to quash the writ, and given the respondent thirty days in which to plead; that plaintiff had good reason to apprehend that further delays would ensue in the proceedings, and because thereof, on June 16th, dismissed the cause in the district court of Huerfano county, and paid all costs thereof.

When it is remembered that the law, creating the office of public examiner, requires that official to examine into the financial affairs of every state, and county public office and officer, and of every state and county institution, penal, reformatory, educational or charitable, at least once each year, and oftener if the-auditor of the state deem it necessary, it is clearly evident, that by the action of the court in granting respondent so long a period of time to make return to the writ, and to file hriefs; and the subsequent delay in ruling on the motion to quash, together with the extended period of time given respondent to plead, after overruling of the motion, deprived plaintiff of the speedy. remedy which the writ of mandamus is intended to afford. Under the facts as presented, we were, and are, clearly of the opinion that our refusal to take original jurisdiction would practically amount to a denial of justice, unless the act under which relator was appointed is unconstitutional.

Eespondent has attacked its constitutionality and that question must ultimately be determined by this court. Prom the attitude of respondent it is proper to assume that he would continue to question the constitutionality of the law, and further delay would be the result, during which the executive department of the state would be hampered and obstructed in the enforcement of the law, not only by respondent, but likely by other public officers throughout the state. It is, therefore, meet and proper that this court exercise its original jurisdiction to the end, that those whose duty it is to enforce the act, as well as the public officials whose offices come within its terms, speedily know what the law is, and what their duties are in the premises. The act does not relate to matters of private, or merely local concern, but with public offices, officers, funds and institutions. It expressly charges the executive department of the state government with the administration and enforcement of the act throughout the state. In its faithful and thorough administration, every taxpayer and every citizen is vitally interested and affected. It imposes duties upon every state and county officer; seeks to aid each in the administration of his office, and to afford means to discover irregularity and dishonesty therein. If the act is constitutional, no offieer coming within its provisions, has any right to obstruct or impede the state officers charged with its enforcement, nor refuse to them access to their offices and books. The interest of the whole state is involved. In fact, the sovereignty of the state itsel'f is affected, for the right of that department of the government charged with the execution of the act, is challenged.

The necessity for this court to retain jurisdiction of the case is made more certain by the return of respondent to the alternative writ. It is therein alleged that the judge of the district court gave as his reason for fixing the return of the alternative writ for the 30th day of April, the fact that by statute he was under the necessity of convening the district court of Bent county on the 5th of April; that it was supposed that court would continue in session for the full period of two weeks; that by statute he was required to open the district court in Prowers county on the 19th of April, and it was supposed that the term would continue for the full period of two weeks; that April 30th was, therefore, supposed to be the earliest time at which the court could hear the matter; that on that-day the court adjourned until the 11th of June following, on which date it adjourned for the term; that the next regular term of the district court of Huerfano county will not convene until the first Monday in October-, 1910.

Respondent, however, asserts that this court has no reason to assume that the trial court was not ready and willing to aid and uphold the laws of the state, and protect its officers in the discharge of their duty. To indulge in such presumption is not necessary for the exercise of our original jurisdiction. We might assume the contrary, and yet the necessity for our acting in the premises would be equally certain. If through great press of business, or otherwise, a district court is unable to consider and pass upon matters of such great public concern, we will endeavor to exercise the power vested in us, under the constitution, to the end, that the rights of the public be properly conserved.

It is next argued that, where facts are controverted, this court should decline to take original jurisdiction. Such is the general rule. It is contended, that an issue of fact was made as to the alleged refusal of respondent to permit the examination of his books; that there was also an issue of fact upon the question as to whether an action of the same character is pending in the district court of Huerfano county; that the good faith of relator, in instituting this action and in demanding an inspection of respondent’s records, is one of mixed law and fact.

While we took evidence upon the question of demand, and likewise upon the question of the dismissal of the suit, we are clearly of the opinion that it was wholly unnecessary. The facts and circumstances of the case, together with the pleadings, clearly establish respondent’s refusal to submit his books, records and files of his office to the examination requested, and likewise disclose the dismissal of the suit. Respondent having alleged that the request to examine was not made in good faith; that if the examination were made, it would be by designing and irresponsible persons, who would not report truthfully and that he was willing for any responsible person, prompted by honest motives, to make the examination, cannot be heard to say that he did not refuse the request made by relator as plead. Such an allegation of nonrefusal, under the circumstances, is trifling with the court, and should never have been interposed. Neither the purpose of the examination, nor the good faith of the relator in making it, have any bearing upon the questions here involved. If the legislature has passed a valid law and thereby imposed upon certain officials specific duties to perform, the presumption is that the performance thereof is important and necessary, and that such officers will exercise the powers conferred in good faith, and not otherwise.

The return admits that plaintiff paid the costs and ordered the suit dismissed. There is no pretense that a counter-claim was filed. Therefore, under sec. 166 of the Civil Code, the suit was, in effect, dismissed.—Doll v. Slaughter et al., 39 Colo. 51.

Respondent contends, that the legislature had no power to create the office of public examiner. The express language of the act is, ‘ ‘ That the office of public examiner for the state of Colorado is hereby estabished.” It is argued that the general assembly might provide a public examiner for each of the counties of the state, and designate the manner in which they shall be elected or appointed, prescribing likewise the term of office and compensation, but it has no power to create an office “for the state”; that sec. 1 of art. IV of the constitution enumerates the state officers, and having failed to provide for additional state offices in the executive department, none can be created.

Respondent concedes, that the language of this court in Parks v. Soldiers’ and Sailors’ Home, 22 Colo. 93, decides the particular point involved, adversely to his contention, but argues that the point was not necessarily involved in that case, and, therefore, the decision in that respect is obiter. We think otherwise. That case expressly determines that sec. 1 of art. IV of the constitution only provided for such officers of the executive department as the members of the constitutional' convention deemed absolutely necessary, “leaving it to the legislature to create new offices as the growth of the state and experience might suggest, and abolish the same, but without authority to abolish any of those enumerated. The constitution of the United States provides that the executive power of the nation shall be vested in the president, but it will certainly not be contended that the president should be the sole executive officer of the nation. ’ ’

Furthermore, art. IV, sec. 6 of the constitution recognizes and provides for the appointment of officers not enumerated in sec. 1 of art. IV thereof.

It is next contended that the act in question and the title each contain two subjects, and is, therefore, obnoxious to sec. 21 of art. V of the constitution.

The statute, Session Laws 1909, p. 455, supra, is denominated, “An act to create the office of public examiner, and to establish a uniform system of public accounting, auditing and reporting under the administration of the auditor of state, to provide penalties for the violation hereof, and to repeal,” etc. It is argued that, “to create the office of public examiner” is one subject; that “to establish a uniform system of public accounting, auditing and reporting” is quite another, and that the two are separate and distinct, and neither could be included in the other.

Respondent concedes, that if one of the two alleged subjects is corollary to the other, or dependent upon it, or can be carved out of it, the dominant subject may be taken as the title of the act, or as the principal subject with which the legislature was dealing, and the act upheld. Ye think the title of the act in question comes clearly within the rule conceded. It may be true had the title been. “An act to create-the office of public examiner” the legislature could not have provided in the bill thus entitled, for the establishment “of a uniform system of public accounting, auditing and reporting,” but certainly if the title read, An act to establish a uniform system of public accounting, auditing and reporting,” it would be broad enough to include the means for formulating and supervising it.

In Clare v. People, 9 Colo. 122, 125, it was contended, for reasons like those urged here, that a law then under consideration was unconstitutional, and we there said:

“This prosecution was brought under an act entitled An act to facilitate the recovery of ore taken by theft or trespass, to regulate the sale and disposition of the same, and for the better protection of mine owners. Gen. St. 747.

"It is. urged — First, that the foregoing title contains more than one subject, and, second, that the section under which this conviction took place deals with a subject not clearly expressed therein. Therefore, counsel contend that section 21, article 5, of the constitution, was here violated' by the legislature in two particulars. * * *

"At first glance, three matters appear to be mentioned in the title * * *; but, upon examination, it will be seen that the first two are fully comprehended within the third. Had the legislature been content to name the statute 'An act for the better protection of mine owners, ’ in our judgment both of the matters specifically mentioned would have been covered. Provisions regarding the recovery of ore taken by theft or trespass, and also those regulating the sale and disposition thereof, would naturally be embraced within an act thus entitled. There being one general subject expressed, the fact that the legislature saw fit to incumber this title with two specifications under that subject does not render it obnoxious to the constitutional objection now urged. ’ ’

So, in the ease at bar, had the legislature been content to name the statute, "An act to establish a uniform system of public accounting, auditing and reporting, ’ ’ it would have also covered and embraced therein the creation, and filling of the office, and defining the duties, of public examiner. All the latter appear almost essential to the establishment of the former.

The act being constitutional, respondent must submit to it. His other, alleged reasons why he should not be coerced, are of no weight, or worthy of consideration. For over three months he has been obstructing the public examiner in the performance of duties imposed by law. The alternative writ should, therefore, be made absolute, and it is so ordered. Writ made absolute.

Decision en banc.

Mr. Justice G-abbebt dissenting.

Mr. Justice Campbell not participating.