Arnold v. Hilts

Mr. Justice Hill

delivered the opinion of the court:

This action was brought by the plaintiff in error. The relief sought, in substance, was to restrain interfer-ence with his access to, or possession of, the rooms in the court house, theretofore occupied by the assessor of the city and county of Denver and the books, papers and records therein, used in connection therewith, containing and pertaining to the records of the assessment of the property situate in the city and county of Denver; and to require the defendant in error to redeliver said rooms and the contents thereof to the plaintiff, and that he be allowed to hold the same until removed therefrom according to law, etc.

The trial court denied the relief prayed for. The plaintiff brings the case here for review upon error.

Article XX of our state constitution was adopted in November, 1902. It provides, among other things, for a so-called consolidation government for the city and county of Denver. Pursuant to its provisions, a new charter was adopted in which the office of assessor for the city and county was created and, a party elected thereto who continued to perform the duties, as such, until ousted therefrom by the decision of this court in the case of People ex rel v. Alexander, 34 Colo. 193, wherein it was held (following the reasons stated in the case of People ex rel v. Johnson, 34 Colo. 143) that the people of the city and.county of Denver had.no authority to change the time of election, term of office, and time when the term of office of the county assessor of the city and county of Denver should commence. Thereafter, all county officers 'for this county, including an assessor, were elected at the regular state and county elections.

.The record as a whole. discloses, that the plaintiff was elected county assessor qf said county at the November election, 1910, and qualified accordingly; that no person had been.elected under the provisions of the city charter to perform the duties of assessor since 1904; that the person elected at that time had been ousted in the 'case-‘above referred .to; that after his election the plaintiff, without question from any one, performed all the ' duties of said office, and remained in the performance of such duties up to and including the 14th of December, 1911; that up to that time'he had been fully recognized by all the authorities of the city and county of Denver as the incumbent of' said office, during which period he never resigned nor withdrew from the office, nor had any steps been taken towards his removal. That some time after eight o’clock during the evening of December 14th, the honorable mayor of the city of Denver made a certificate of appointment designating the defendant Hilts to lie the assesssor for the city and county of Denver, and forthwith sent the appointment as such to the board of supervisors of the city then in session, which board at once confirmed the appointment; that a little later during the evening Hilts took the oath of office as such, filed a bond as required by the charter of said city, and filed another bond with the auditor of state for approval. That thereafter, some timé between nine and eleven o’clock the same night, he proceeded to the rooms occupied by llie plaintiff as the assessor’s office in the court house, accompanied • by The- custodian of buildings of said city and county, and a number of/men, some in police uniforms; and finding the plaintiff with some of his assistants in- -possession of the office, with the doors locked, the defendant Hilts, the custodian of buildings and others with them, broke into the rooms, and demanded of Arnold that he vacate and deliver up said rooms and the contents thereof to Hilts; that upon his refusal so to do, the said' Hilts and those with him used the necessary force to remove the plaintiff Arnold and his assistants therefrom, and from the building. That while the amount of force used was perhaps not unreasonable, if justified at all, the evidence is conclusive of the fact, that, the reason "greater force was not used, was upon account of its being unnecessary' in order to overcome the resistance made, but had it been necessary to have used greater force, the defendant was supplied with abundant assistance to have overcome any force which it would have been possible for the plaintiff to have caused to be. made, after he had been advised of what was intended. That since such forcible removal the defendant has held possession of the rooms and the other county property therein, covering the records pertaining to the assessment of the property of said city and county, and has' been protected in so doing by certain officers of the city and county and others; that plaintiff and his assistants have since been denied access to the rooms of the books, papers and records therein contained, on account of which they have been unable to perform the greater part of the duties pertaining to the assessment of the property of the city and county which they were theretofore performing.

The principal contentions made to sustain the ruling of the trial court aré: First, that this was an attempt to try the title to an office, which it is conceded in'this' jurisdiction can only be done in a quo warranto proceeding or by election contest; hence, that a court of equity was without jurisdiction. ■ Second, that at the time of the bringing of this suit the defendant was in possession of the office by virtue of an appointment from the mayor to fill a vacancy in the office of city and county assessor, which office was created by the charter and to which office the plaintiff can make no claim, and that under the decision of this court in the case of The People ex rel. v. Cassiday, 50 Colo. 503, the defendant became the de jure officer in possession and was in the performance of his duties, and that he. was not only entitled to so- continue, but if disqualified, he was the de facto• officer- hence his right to- continue could not be questioned except in a proper quo warranto proceeding, regardless of the manner in which he secured possession of the office, or the rooms, books and papers pertaining thereto-.

It will be observed that this attempted ouster 'by force happened at a time when neither the constitution, state laws nor city charter provided for changes to be made in the incumbency of this office. As we read the pleadings this action was not brought to test the title to an office, but to restrain a certain person from forcibly taking possession of the rooms, books and furniture pertaining to the office of assessor, ánd restrain him from' thereafter preventing one theretofore in possession, and in the performance- of such duties from continuing to perform the same, and to have them so returned to him with the privilege of so retaining them, and to- continue in the performance of such duties until he is ousted therefrom, and the property taken from him in the manner pro- • vided-by law. In a case of this kind a court of equity ivas unquestionably possessed with jurisdiction to grant the necessary -relief, as said by the supreme court of Nebraska in the case of Hotchkiss, trustee, v. Keck, et al., 86 Nebr. at page 325 :

“Of course, an action of injunction is not the proper remedy to try title to public office. The many authorities cited by defendants in their brief establish that proposition, if indeed there was ever any doubt in regard to it. The law is just as clear that, where one is an incumbent holding the office ünder a prima facie legal right and performing the duties thereof, a court of equity will restrain an intruder from interfering with the proper exercise of those duties. That the plaintiff held this office for a term of two years ending in 1908 is conceded, and under the statute above cited there can be no doubt of his right to hold over until a successor is elected and qualified. It is, of course, equally clear that the defendants, one of whom was a candidate for election as a successor of the plaintiff, are not invested with the power or jurisdiction to determine for themselves whether they were duly-elected.”

We think this principle specially applicable here. It is conceded that the plaintiff, Arnold, was elected as an assessor within and for the city and county of Denver at the November election, 1910. At that time, pursuant to the provisions of the constitution as construed by this court in the Alexander case, supra, he became and was the de jure officer, and thereafter continued in the performance of his duties, and, while it is true that the principles of law announced in that opinion were overruled in the case of The People ex rel v. Cassiday, 50 Colo. 503, it is also a fact that this plaintiff was not a party to that action, and this court took particular pains in that case to point out, in substance, that while the principles of law announced in one case might be applicable to another with a like result to that reached in the former, yet whatever force ttherei( might be in the contention for so claiming depends solely on the principles of stare decisis pot res judicata. Otherwise, when applied to. the -facts here, it .would be -to say that although Mr. Arnold had been duly elected by the people at a time when, by the sanction of the highest court in the state, he became a dte jure officer and continued as such until thereafter the supreme court of the United States declined to take jurisdiption in -an action decided by this court to which he was not a party, but upon account of the principles therein announced, when that decision became final, he thereafter c-pased to be a de jure or even a de facto officer, but from tjiat- moment became a usurper, subject to removal by fprce; the emergency to justify it to be determined by another claiming the right to the custody of the property, and rooms theretofore occupied by him as such officer.

We .cannot agree with this-line of reasoning. The facts upon which the Cassiday case was presented are not all present or involved when applied to the conditions here. In that case others had been elected under the provisions- of the constitution to perform the duties in controversy ; - when that decision became final there had been no one elected or appointed to fill the office of city and county assessor, and, so far as this record discloses no one was contending that he, instead of Mr. Arnold, had the right to perform those duties or .that Arnold was without authority to’do so. Under this state of facts it was not only Arnold’s right, but it was his duty to continue in their performance; this, of necessity, made of him at least a de facto performer of the duties of the office and he was entitled, to be and had been recognized as such by all of-.the city officials. But it is contended since we held in -the' Cassiday -case, under the constitution, that there is--no office'-of ..county assessor as such, that thereDore there c-aix-be no such'officer; henee, plaintiff veannót '.‘claim to be even the de -facto performer of' the- duties' of ;'an office which* does not exist. While-'technically speaking this may be true,- yet we also held -in the' Cassidy casé, Dvs well as in the case of The People ex rel v. Sours, 31 Colo. 369, that article XX of the constitution, by the abolishment of these county offices as such, did not abolish the duties pertaining to them, but that they continued and it would hereafter be the duty of some one to continue to perform all-such duties just the same as it had been prior to the adoption of article XX. Mr. Arnold was in possession of the books and rooms required by the person who was to perform these duties. He was likewise in the 'discharge of these duties, hence he was at least the performer of the duties pertaining to the office ' which calls for the assessment of the property of the city and county of Denver for the purposes of taxation. So far as we are advised, the only duties provided by the! charter for the city assessor to perform'are those provided for by the general laws of the state for all county asses- ’ sors to perform. 'Mr. Arnold was in the performance of all thése duties and, at the'oral argument, it was admitted by one of the counsel for the defendant that in'his opinion, his acts as such even hereafter, would have been binding upon the people had no one been appointed by the mayor to fill the position of city and county assessor. His certificate of election-, and'oath of office both purport to cover and read ‘the office of assessor of the city and 'county of Denver1 although further showing that the election upon which they were issued was held in November instead of May, as the charter provides. He was also recognized as such assessor by the city "and county authorities both before and after the decision in the Cdssidaycd.se, and whilé'thesé'fa'cts are not especially material here, where the title is not to be tried, they do have some bearing upon the question of his good faith in retaining, possession of the office. Being thus in possession and having taken such possession at a time when he was recognized by all as the de jure officer, we think a court of equity is, under these facts, justified in restraining interference by force with such possession until his right to the office has been determined in proper quo warranto proceedings.—High on Injunctions, vol. 2, (3rd Ed.), section 1315 ; Blain v. Chippewa Circuit Judge, 145 Mich. 59; Poyntz, etc. v. Shackelford, 107 Ky. 546; Braidy v. Theritt, 17 Kans. 468; Callaghan v. McGown, 90 S. W. (Tex. Civ. App.) 319; Brady v. Sweetland, 13 Kans. 41; Conover v. Devlin, 24 Barbour (N. Y.) 587; Kerr et al. v. Trego et al., 47 Pa. St. 292.

As stated by the supreme court of Indiana in the case of The City of Huntington v. Cast et al., 149 Ind. at page 259:

“The welfare and good order of society and government require that those engaged in the discharge of public duties should not be disturbed by claimants whose right to discharge such functions is as yet uncertain. Equity will protect the possession of the incumbents from any unlawful intrusion.”

It is urged that this court is committed to a contrary doctrine. We do not think the cases cited sustain the contention. The facts in the case of The People ex rel v. District Court, 29 Colo. 277, were in no respect similar to those here. No similar question to those here presented for determination was before the court there.

The case of Lawson v. Hays, 39 Colo. 250, involved the contention of whether the board of county commissioners of the county should consist of three or five. Two members out of the three whose titles were not questioned brought an action to restrain two others, who had just been elected, from acting or assuming to act as members of the board until final determination of that suit.' They asked that on final hearing it be adjudged that the board consist of three members and that the" temporary writ sought then be made permanent; the court very properly held that the real point in question involved the defendant’s title to a public office, and, as a court of equity will not try such title; the trial court had no jurisdiction of the subject-matter. There was no- contention that there were two claimants for the office one in and one out, or pertaining to any force in securing possession or otherwise, the sole question wás to determine the existence of the office which would cover the defendant’s title thereto.

In the case of The People ex rel v. Elbert District Court, 46 Colo. 1, the controversy was in no respect similar to this. The office of Olsen as county commissioner had expired by limitations. The relator Pauls had been chosen as his successor and qualified. This all'transpired in a peaceful, orderly manner, and, at the time provided for such changes, and as we said, one was then unconditionally out and the other unconditionally in the office, and the party seeking the injunction had neither possession to, nor claim upon, it, either de jure or de facto, yet sought to enjoin out of the office, one, who, upon the undisputed facts, had been solely elected thereto, and had received the proper certificate, had taken the prescribed oath and possession of the office. It is entirely different from the case at bar. Here the incumbent Arnold had gone in peacefully and lawfully, at the time he should, and was de facto in the performance of such duties when forcibly removed by another claimant whose rights to it had not as yet been determined; under such circumstances a court of equity will protect such an inJcárhbéüt 'in 'possession’as" against others -who- may-claim ‘tire' right to ft, until their claims are established.- ■ ’ ' r-'

'A - Ifis'nei;t-contended"’as the defendant is-now in possession by-'virtue of an appointment from the máyor, con■firme'd-by-the supervisors, etc., as’provided by the charter, and dn the performance of the duties, that this makes of 'him'at«least a 'de fado officer in• possession. -Further, ’that a'consideration of his title will disclose that he is in ‘fact a de jure "officer, but in either event-as these questions cannot be looked- into or tried in an equitable pro'ceedin'gj that the only way he can now loe ousted or these 'questions tested, is byquo zmrranto proceedings against him.’ As previously stated, the title to the office or any office is'not involved in this action, but the-real question to-be'determined pértaining to this phase of the contention, is whéther'the courts are to recognize that there is an advantage to be gained by securing possession forcibly. :If this is true, then a similar advantage is to be had by “the ousted party, rallying to his assistance sufficient suppor to overcoihethe resistance of the other incumbent, and retake- possession; the' result being that the courts would "recognize 'the advantage secured by the one- who could rail)' to his assistance the larger mob to be used in aiding him to obtain or in retaining possession. Tt would be do say, let mob violence prevail; and the- courts will recognize that the winner has thus secured'an advantage over 'his adversary, also that a claimant for an office or for the roorhs, books and papers pertaining to one, can, for himself, decide when a sufficient emergency exists to justify such action. This court has heretofore held that this is not the law in'this jurisdiction; and hás pointed out the proper mode of procedure in which to have these questions determined. In re Fire and Excise Commissioners, 19 Colo. in' conimehfihg’upo-n the proper’mo'de of procedure to have. determined the rights of different claimants to .an office, this court, at page f499, said: .

, “That no further doubt may exist' upon this question, we. say, without hesitancy," that if the executive order of removal is questioned by the incumbent, the courts have the power, and it is exclusively within their province, to pass upon such objections and determine as between the respective claimants the right to the office in question, and the law provides a plain and adequate procedure for that purpose; and a speedy determination of' such question is insured by express statute. Mills’ Ann. Stats, p. 830. All law-abiding citizens will, and all others should be required to, submit such controversies to these tribunals for settlement. The district attorney is empowered by statute to bring an action for that purpose.”

At page 503, in commenting upon this same phase of the matter this court further said:

“A proper regard for the reputation and peace of the community would dictate that the claimants institute proper proceedings in court to determine their right to the offices. In this way a speedy and peaceful result can be reached, and the person entitled to the office installed therein without disturbance or delay.” :

If it were, necessary, we- might add that the very foundation.. of organized government, depends upon all citizens who refuse, being compelled to recognize and bow to the rules and regulations of .the majority, promulgated through the laws .of the land.

. A somewhat similar state.of-facts existed in-the case of Blain v. Chippewa Circuit Judge, supra, vyhere the party taking .possession by, force made this,, .same contention. . The .supreme .court, of Michigan, ip answer, to. this contention, among other things, at page 65, said.:.-

.“To the suggestion that the injunction should be dissolved upon the ground that Blain and not Hecox is the de facto officer, we reply that this claim can only rest upon the proposition that, while Hecox was unquestionably an officer in possession, claiming title to the office, and performing his. duties whenever occasion presented, Blain, by virtue of a trespass and the acquiescence of his friends, whereby he. excluded Hecox from the official place of business, and in part of the property belonging to the office, and proceeded to perform its duties when opportunity offered thereby becanne the de facto officer instead of Hecox, and that therefore this injunction could not be lawfully issued, because restraining him from performing the duties of the office would be ousting a de facto officer. We are of the opinion that this is unduly dignifying an attempt at forcible usurpation, and that Hecox is the de facto officer, and that if his bill made a prima facie case.in the opinion of the circuit judge, it was a proper exercise of discretion to restrain interference with Hecox’s performance of duty by Blain. Certainl)'-. the question of who is really the de facto officer cannot depend alone upon the ability of one to- forcibly exclude an-officer from his place of business, and while holding him out by force perform its duties to1 the extent of doing- such business as is presented. Such methods of obtaining possession of a contested office would have advantage of apparent simplicity, but would not tend to the preservation of the public peace. This opinion rests upon the belief that the bill shows Hecox.to be the de facto officer, in possession.of the office when.the application for. injunction was made.

To the same effect, in substance, is the Kansas case of Braidy v. Theritt, supra the rule announced reading from the syllabus is;

• “Where an office is in dispute between two persons, and the one in actual possession of the office steps out of the place where the business is usually performed, but with no intention of abandoning the office, or of giving it to the other person, and such other person with full knowledge of the facts steps in and immediately proceeds, to dp business as though he was in fact the officer, held,. that as between such two persons, the one previously in possession must be considered as the officer de1 facto.

We think this principle applicable here, and if any advantage is to be recognized by possession under this state of facts, it belongs to the incumbent who was in the office and in the performance of the duties prior to-the time the contention arose. Mr. Arnold was inducted, into office peacefully and- lawfully, and under the facts, as they exist here as between him and the defendant claimant, he should be allowed to vacate peacefully, or be lawfully removed, and until such time comes he should', be protected by the courts in such possession. Let it be-understood that nothing- in this opinion is intended to. give any expressions pertaining to the right to continue-to hold any office involved or the possession of the office, or privilege to perform the duties pertaining thereto, when it is sought to have those matters tested in a proper proceeding instituted for that purpose.

For the reasons stated the judgment is reversed and the cause remanded with instructions that a decree be entered in harmony with the prayer of the plaintiff’s complaint. Reversed and remanded zvith instructions^

Decision en banc.

Mr. Justice White and Mr. Justice GarriguES". dissent.

Chiee Justice Campbell not participating.