McNichols v. City of Denver

*279Mr. Justice Hilliard

dissenting.

In the event of vacancy in the office of justice of the peace in the City and County of Denver, may the Mayor appoint or designate (synonymous terms — Webster) thereto an individual, otherwise qualified, who happens to be an associate municipal judge? I think the city council, proceeding by formal ordinance, as here, was competent to clothe the Mayor with that power. The duties of the two offices do not conflict, and I know of no specific inhibition against making such an appointment. The charter provision is, that “No officer shall hold or enjoy another public office * * * for which he is paid any compensation.” Charter, §311. “Its real purpose,” we have said, “is not so much to prohibit one person from performing the duties of two offices as to forbid the payment of more than one salary to one person.” Lail v. Denver, 88 Colo. 362, 297 Pac. 512. In that case, Lail, who was both clerk and recorder, and public trustee (appointed to both positions by the Mayor, but at different times), each of which offices carried a salary, already having received the salary for clerk and recorder, sought to enforce payment of the salary provided for the public trustee. He was denied recovery. Mr. Justice Butler, author of the court opinion, discoursing further in the case, said: “As we have seen, the purpose of the Constitution and the charter was to consolidate separate offices into one office, with only one salary. Even where, as here,” said the distinguished jurist, “the charter, through some oversight, fails to expressly consolidate two offices, the charter section that we are discussing prevents an officer appointed to a second office from being paid the salary of that office. If Lail had resigned his first office upon being appointed public trustee and had ceased to perform the duties and receive the salary of the first office, he would have been entitled to a salary as public trustee; but, as we have seen, he did not resign, but continued to act as clerk *280and .recorder * * *, and accepted payment of the salary for that office.”

Here, if under the administration of the ordinance in question, it shall develop that one holding the office of associate municipal judge — a position carrying a salary —without resigning therefrom or ceasing to draw the salary therefor, accepts a designation as justice of the peace, also carrying a salary, nothing untoward can occur unless, motivated as was Mr. Lail in Lail v. Denver, supra, on taking over the duties of the latter office, he shall, in addition to the salary already paid him as an associate municipal judge, contend he is entitled to the second salary as well. The Lail case is a conclusive answer to any such claim.

My conviction is that nothing presented to the trial court constituted a justiciable question, and dismissal might well have been the order there. For that reason, and because of steps taken by the parties pursuant to the trial court decree, the record on error considered, dismissal should be the sum of our duty on review. But, since we have accepted reviewal jurisdiction, and do not dismiss, I think the judgment should be affirmed.

Mr. Justice Bakke concurs in this opinion.