delivered the opinion of the court;
“And immediately upon such assignment and transfer of causes so pending- on error, the clerk of the court of appeals, shall, by registered mail, notify the parties to each of said causes or their attorneys of record, of such transfer, and advise them that unless within thirty days from the date of said notice a petition be filed requesting that the same be remanded to the supreme court, a waiver by consent will be conclusively presumed of the right or •privilege, if any such right or privilege exists, to a hearing- and determination of the writ of error by the supreme court. And if either of the parties or his attorneys, to a cause thus removed, shall, within the time above specified, file such petition to remand, the same shall be at once returned to the supreme court docket for final consideration and decision. But in all cases pending on error thus transferred, wherein no such petition be filed within the 30 days mentioned in the notice, the decision of the court of appeals shall, with the exceptions specified in section 6 of the act, be final and conclusive.”
Section 6 is as follows:
“Provided, however, that in causes thus transferred from the supreme court to the court of appeals, whether pending- on appeal or error, wherein the decision necessarily involves the construction of a provision of the federal or state constitution, or relates to a franchise or freehold, or a judgment for more than $5,000, exclusive of costs, such decision thereof by the court of appeals shall not be final. Such cases may be reheard in the supremePage 64court by writ of error from the latter court, under rules to be adopted by it. Or if, before a hearing in any case, either party thereto shall advise the court of appeals that it belongs to one of the classes' of cases in this section above specified, and the court shall upon investigation so find, it shall at once and without further proceedings remand the same to the supreme court for determination.”
Section 7, among other things, provides that the court shall have power to adopt rules regulating the procedure therein, that it shall be a court of record having a seal and that it shall have power to issue-all necessary and proper writs and processes in aid of its jurisdiction, “in the same manner and with the same effect as the supreme court.” The balance of the act provides for detail matters, which need not be noticed. After the act went into effect the respondents by appointment by the governor, organized the new court of appeals and entered upon the discharge of the duties of judges thereof, and this original proceeding in quo warranto was brought to test the right of respondents to do so. Two questions are presented for determination. First, is the act constitutional? Second, were the appointments of respondents valid?
The court created by this act is a court of review, and its jurisdiction extends only to such civil causes as may be transferred to it from the -supreme court. Section 1 of article VI of the constitution declares that, “The judicial power of the state as to matters of law and equity, except as in the constitution otherwise provided, shall be vested in a supreme court, district courts, county courts, justice's of the peace, and such other courts as may be provided by law.” By this section, the general assembly is authorized to create a court of review, and as there is no express constitutional limitation of the jurisdiction that may be conferred upon such a court thus created, if
Every question, save one, raised by relators, that i§' within the facts of this case, and which must be considered in order to determine it, was answered by this court-in the case of People v. Richmond, supra, and there resolved against the contention of these relators. If any such question was not directly answered in that case, it is answered by the conclusions which must necessarily follow from the reasoning therein, and the answer is at once apparent upon the reading of the decision. The one such question raised now, that was not raised in the Richmond case, relates to the sufficiencj' of the title of the act. It is claimed that the title of the present act is obnoxious to section 21 of article V1 of the constitution, which provides :
“No bill, except general appropriation bills, shall be passed containing more than one subject, which shall be clearly expressed in its title; but if any subject shall be embraced in any act which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be so expressed.”
There is nothing in the present act but what relates to courts of review, so that the act contains but one subject clearly expressed in its title. This is settled in the case of Golden Canal Co. v. Bright, 8 Colo. 144, where the subject is thoroughly discussed. In speaking of this constitutional provision, relating to the title of a bill, this court said:
“This constitutional inhibition must receive a reasonable construction. It is enough if the bill treats of but one general subject and that subject is expressed in the
Any other questions than such as are above described are not pertinent to this case, and their discussion would be obiter. Relators contend that the general assembly cannot take away from the supreme court any of the jurisdiction conferred upon it by the constitution. This abstract proposition cannot be denied. In discussing the question, however, as applicable to the present act, they constantly confuse the constitutional jurisdiction of the supreme court with the quantity of business that may be transacted by it. The jurisdiction of a court is one thing, the amount of business it may transact is another. A court may, in one year, dispose of a great number of cases, and in the next year dispose of but half as many, yet its jurisdiction, during the second year, would be the sanie as during the first. A court may dispose of a certain number óf cases during a certain time, and another court of like jurisdiction may dispose of one-half as many cases in the same time, yet it cannot be said that the jurisdiction of the latter court was lessened any on that account. This act does not, in any way, impair the constitutional jurisdiction of this court. If it did, that question would be in this case. All the act does is to reasonably regulate the quantity of business before this court for a limited period. The constitution confers and defines the jurisdiction of this court, but it does not “forbid the legislature from regulating, to some extent the quantity of its business by reasonably contracting or enlarging the limits of the exercise of such jurisdiction as the exigencies
The present act abolishes the right of appeal and provides that appeals, pending in the supreme court, should be transferred to and determined by the other, and requires no notice of the transfer of such appeals, or any objection to be made to such transfer. In this respect, the act differs from the one under consideration in the Richmond case. In that case it was said that appeals are creatures of statute. Indeed, this is so well established that it cannot be refuted. A statutory fight of this kind may be taken away by statute. In Callahan v. Jennings, 16 Colo. 471, it is said:
“ ‘A statutory right to have cases reviewed on appeal may be taken away by a repeal of the statute, even as to causes which have been previously appealed.’ Cooley’s Const. Tim., section 474; (other citations). The principle applies to causes pending on appeal for trial.de novo as well as to those taken up for review. (Citations).”
And in Railroad Co. v. Grant, 98 U. S. 398, the supreme court of the United States, speaking through Chief Justice Waite, said:
“But a party to a suit has no vested right to an appeal or a writ of error from one court to another. Such a privilege once granted may be taken away, and if takenPage 68away, pending proceedings in the appellate court stop just where the rescinding act finds them, unless special provision is made to the contrary.”
This act, instead of stopping these appeals just where the rescinding act finds them, preserves to the parties their right to be heard on pending appeals. It simply stops tlie progress of an appeal in one court and transfers it to another with jurisdiction to determine it, thus affording to the parties a tribunal for the determination of pending appeals instead of stopping them and leaving them undetermined. The present act, not only preserves pending appeals, but provides that judgments of the court of appeals, in certain classes of cases,' may be reviewed by writ of error from the supreme court. If the abolition of appeals would stop those pending where' the rescinding act finds them, unless special provision is made to the Contrary, then such special provision for the disposition of pending- appeals, as is made in this act, cannot be said to be an unconstitutional exercise of legislative power in the absence of an express provision of the constitution inhibiting such exercise. The relators devote much space in their brief in a discussion to show that parties cannot be deprived of the right to a writ of error from the supreme court. The present act does not deprive anyone of a writ of error from .this court. On the contrary, it preserves the writ of error precisely as it was before the passage of the act, and in addition, in section 4, the remedy by writ of error is extended to such instances where it may not have extended before, so that the discussion of this question raised by relators would be altogether obiter. The question which may arise in this case, relating to writs of error, is whether or not the provision in the act is valid, providing that writs of error, now or hereafter pending in the supreme court, may be trails
In Newark Pass Ry. Co. v. Kelly, 57 N. J. L. 655. at 676, it is said':
“The circuit court possessed, by law, jurisdiction over the cause of action disclosed by this record. While consent cannot confer upon a tribunal a jurisdiction not vested in it by law, yet parties may, by consent, permit a tribunal to acquire, though irregularly, a jurisdiction which the law has conferred upon it.”
“As a general rule, subject to the exceptions hereafter noted, a party may waive any legal right to which he is entitled. Rights growing out of contracts may, of course, be waived, likewise rights conferred by statute, and constitutional rights may be waived by the party in whose benefit the rights accrue.” 29 Am. and Eng. Ency, of Law, 11107. The exceptions noted in the Encyclopedia do not include any such a case as is here presented. It is unnecessary to proceed further in answering the contentions of the relators, for the discussion would necessarily
Having answered the first question in the affirmative, we will proceed with a discussion of the second, that is, were the appointments by the governor valid? After being passed by the general assembly with an emergency clause, the bill for the present act was presented to the governor on May 4, 1911. .On May 6th the general assembly adjourned sine die, and under the law neither the general assembly nor the senate would again meet in regular session until January, 1913. The governor retained the bill until June 5, 1911, on which day it was filed in the office of the secretary of state without any objections; in fact, without either the approval or disapproval of the executive. Under such circumstances, the act would have gone into effect in June, unless the initia
Section 1 of the act is, so far as need be noticed now,, as follows:
“Section 1. That there be and is hereby established a court to be known as the ‘court of appeals,’'which shall exist for a period of four years from the date upon which this act shall take effect. * * * Said court shall consist of five judges who shall possess, etc. * * Upon the taking- effect of this act, the governor shall, with the advice and consent of the senate, appoint said judges to serve during the existence of said court, designating one of them as presiding- judge, but no such-appointment shall take effect until a confirmation thereof by the senate, except that in case of vacancy through death, resignation or removal from office, the governorPage 73.shall-fill the same until the next session of the legislature, when the senate, may confirm or reject the appointment .so made. Said judges shall enter upon the duties of their office immediately upon their appointment. Vacancies .shall be filled in the same manner as the regular appointments are required to be made. * * *”
Section 4 of the act provides, among other things, .that “the jurisdiction of the supreme court on appeal, ■ even as to causes already pending therein shall, * * * terminate upon the taking effect of this act, except for the purpose of entering the order of transfer hereinafter •provided for.” And, thereafter, the section provides that the supreme court should order the appeals transferred to .the court of.appeals upon its organization.
" . It is clear from these sections that when the act took -effect, the court of appeals was established and the court, .as well as the offices of judges thereof, were then in exist-ence. When the act went into effect, the offices existed without incumbents, and with no one ready to fill them, and the governor was unable to make the original appointments as therein provided, for the senate had adjourned and was in recess. Vacancies then existed in the offices, and these vacancies occurred during the recess of the ■senate. That such was the condition, is settled beyond -controversy by the case of People v. Rucker, 5 Colo. 455. In that case, this court had under consideration the provisions of an act creating and establishing' a criminal court in Lake Comity. The first section of the act established the-criminal court of Lake County, and it was provided that:
“The governor shall, immediately after this act takes -effect, appoint, with the advice and consent of the senate, a person possessing the necessary qualifications as judge •of said court, and all vacancies in said office shall be filledPage 74in the same manner; provided that all vacancies occurring during the recess of the senate, may be filled by appointment by the governor, but such appointment shall expire at the end of the next session of the senate.”
This court', in commenting upon that act; said :
“Under the act in question, the appointment was to be made ‘immediately after the act took effect, and with the advice and consent of the senate.’ Immediately would mean within a reasonable time, having reference to the act to be done. The ‘advice and consent of the senate’ being necessary, the hour of the adjournment of that body would mark the extreme limit of time within which the appointment was to be made. Had the act been signed prior to the adjournment, and no appointment made, immediately upon adjournment there would have been .a vacancy, by reason of the failure of the appointing power to exercise it. In this case, the bill not having been signed until after the adjournment, the governor was unable to act under the provision for filling the office, ‘with the advice and consent of the senate.’ Upon approval the act took effect immediately; the time within which the executive was required to appoint had expired, and inability to act was followed by a vacancy, the same as in case of a failure to act.”
So much of section 6 of article IV of the constitution, as is applicable here, reads:
“The governor shall nominate, and by and with the consent of the senate, appoint all officers whose offices are established by this constitution, or which may be created by law, and whose appointment or election is not otherwise provided for, * ' * * If during the recess of the senate a vacancy occur in any such office, the governor shall appoint some fit person to discharge the dutiesPage 75•thereof until the next meeting of the senate, when he .shall nominate some person to fill such office.”
The offices of judges of the court of appeals were •created by law. This court has held that the words “not otherwise provided for,” in the above mentioned section •6 of article IV of the constitution, refer, not only to original appointments to office for the term, but also to the filling of vacancies, ánd that the method prescribed by the .statute for the filling of vacancies must be followed. People v. Osborne, 7 Colo. 605, unless, of course, the •constitution, in some other part, may provide for the filling of a vacancy in a particular office, as was the case in People v. Rucker, supra. In the case at bar, however, the constitution does not provide in some other part for the •filling of a vacancy occurring in such an office as that of judge of the court of appeals. This court has also said that if no provision is made in the statute for filling vacancies, then the constitutional provision that if a vacancy occur in an office during the recess of the senate, ■“the governor shall appoint some fit person to discharge the duties thereof until the next meeting of the senate,” would be in force. People v. Osborne, supra. From this it necessarily follows that if a method is. prescribed by the statute for the filling of vacancies, requiring the joint action of the governor and senate, and time must expire between its occurrence in the recess of the senate and the time that the statutory method of filling it can be employed-, the constitutional regulation for the appointment ■ad interim must be resorted to for the intervening- time. 'The present statute must, therefore, be examined relative to its provisions. for filling vacancies. Before doing this, it is well to understand what filling vacancies means. The term “vacancies” does not apply to the incumbent but to the term or the office, or both, depending generally on the
If the incumbent of an office for ’the term of four years dies in a year, the vacancy cannot be completely filled until someone is elected or appointed to fill the office for 'the uhexpired term. There is a provision that in- case of a-vacancy in the office of a district judge, the governor shall appoint a person to fill it until the next regular election, when someone shall be elected to sefve for the unexh" pired term. It cannot be said that the governor fills the vacancy—it is only partly filled, if at all, by him. He fills it until the election, and the electors fill’ it for the balance of the term. Strictly speaking; the 'governor and • the electors fill the vacancy that existed at the time of its occurrence, so that when a statute speaks óf filling a’ vacancy, without any qualifications or limitation, it means just what it says, the filling of the vacancy, and to do that the office must be filled for the whole of the unexpired term. Such is the view taken in Monash v. Rhodes, 11 Colo. App. 404. There, a provision of the charter of Denver created the office of member of the board of public works' and provided that it should be originally filled by-appointment by the governor, with the advice and consent of the senate, ánd that the governor should have “power to fill vacancies in vacation of the senate by appointment in writing filed with the secretary of state.” One of the rival claimants contended that the governor, under this power, could fill the vacancy occurring, only until the meeting of the senate, and the other that the governor had ’-e right to fill it for the whole of'the unexpired term, which extended beyond the meeting of the senate: The latter view was upheld, -and in the course of its opinion, the court of appeals said:
Page 77■'“As we take it, ancl according to our view-of the word ‘vacancy’ as used in modern time's, it relates not1 only to-the office which is to be filled, but to the term for which the appointment is to be made. It is constantly used in statutes and constitutions with reference to both office ánd tenure, and we believe that the proper interpretation of the word when power is given to an executive or a board to fill a vacancy, is, a power to fill the office designated for the unexpired term which may remain after the-death, removal, or resignation of the antecedent incumbent. In other words, when the incumbent dies, is removed, or resigns, there is a vacancy not only in the office, but in the term for which he was appointed, if that was for a definite period. It usually happens that the legislature provides that the appointment shall be for the unexpired term, to the next general election, or for sucli other period as their wisdom may dictate.”
This reasoning of the court of appeals was concurred in by this court in Monash v. Rhodes, 27 Colo. 235, 237, where it was said :
“We' fully concur in its (the court of appeals) construction of this provision of the charter, and in its conclusion that thé power conferred upon the governor thereby authorized him to appoint appellee for the unexpired term; and that he was not required to submit the appointment to the incoming senate for confirmation.”
■ Thé constitutional regulation aforesaid, providing for'creí interim appointments, plainly refers to cases where the joint action of the governor and the senate is necessary to fill a vacancy. Its very language indicates that such appointments, by the governor, are not intended to fill vacancies/1 'It' does not say that he shall appoint some fit person'tó fill’the vacancy or the office until the senaté meets, but “to discharge the duties thereof until the next
The statute will now be examined in search of a provision relative to'filling vacancies. With reference to appointments, it first provides:
“Upon the taking effect of this act, the governor : shall, with the advice and consent of the senate, appoint .said judges to serve during the existence of said court, ■ designating one of them as. presiding judge, but no such appointments shall take effect until a confirmation thereof '.by the senate.”
This plainly refers to the original appointments for -the full term, for the appointments are to last during the ■ existence of the court. The relators admit this and say -that the act is peculiar in that it authorizes appointments ■ only for the full term. If this were true, it would be -unnecessary to go further, for in that event the filling of vacancies would not be “otherwise provided for,” and -the constitutional provision would undoubtedly govern. The words “but no such appointment shall take effect -until a confirmation thereof by the senate” undoubtedly refers to- appointments for the full term, for the words “no such appointments” plainly refer to the appointments mentioned before, and those appointments were the original appointments to serve during the existence of the • court. These appointments were to be made upon the taking effect, of. the act. Here, however, precisely as in the case of People v. Rucker, supra, when the act took effect the senate had adjourned sind die and was in re- • cess. That case establishes that the hour of adjournment of the senate on May 6th marked the extreme limit of -time within which the original appointments for the term
1. Because the calling of an extraordinary session of the senate is within the discretion of the governor. Many things might combine to shape the exercise of that discretion. After due consideration, the governor might conclude that it would be unwise to call such a session, in which event a period of at least fifteen months would pass before any appointments would be made and before such vacancies as occurred could be filled. Such a session was an event too uncertain for reasonable men to select as a beginning for the work of a court which they had created and which, as is shown by language and provisions of the act itself, they desired to go into immediate operation, and, as seen from the Rucker case, as early as the adjournment of the general assembly then in session.
' ' 2. Because the act itself indicates that the confirmations mentioned therein were intended to be máde at regular sessions of the senate, for the act, at the only place designating the sessions specifically at which con
3. Because, (and this reason is sufficient in itself) according to the Rucker case, the original appointments for the term had to be made during the session of the general assembly which passed the act, or not at all, and that was declared by this court in that case, notwithstanding that the constitutional provision for the calling of an extraordinary session of the senate existed then as now. The act under consideration in the Rucker case had the-same provisions for the making of the original appointments for the term as the act under consideration here. With the same provisions in this act, with reference to the appointments, and the same constitutional provision for the calling of an extra session, this court must now overturn the Rucker decision, unless it be concluded that the last general assembly did not have in contemplation the calling of such a session. If we would be right now in saying that it did, this court was wrong in the Rucker case iii ignoring such a session, and in saying that the right of the governor to make the appointments ceased with the adjournment of the assembly. We must presume that the general assembly knew the law, as declared in the Rucker case; that they intended to follow it, and knowing it and so intending, they could not have had in contemplation an .extraordinary session of the senate.
It is plain from the act that 110 person can be appointed a judge of the new court for the term or for an unexpired portion thereof without the confirmation of the senate. It is contended that the first or initial appointment of persons to discharge the duties of the offices must receive the sanction of the senate before such per
The provisions that the court- and the offices were to exist'an'd this court deprived of jurisdiction in such'á"' large numbéí of cases; when the'act took, effect, the use
“Chief among the considerations to be weighed in the construction of a statute are the objects to be accomplished, the evils to be remedied, and the circumstances under which it was enacted.”
And in Murray v. Hobson, 10 Colo. 66, 73:
“Among other well established rules of construction are these: That statutes are to be construed with reference to the objects to be accomplished by them, and with reference to the circumstances existing at the time of their passage, and the necessity for their enactment.”
And in Ellet v. Campbell, 18 Colo. 510, 518:
“In resolving this question, as in other cases of like nature, the meaning and application of the statute is to be ascertained by considering its origin, its history, its purposes and -objects, as well as its subject-matter and the language employed.”
Having considered the act in the light of the previous decisions of this court and the. constitution, and concluding that the respondents are entitled to remain where they are, its paramount objects and purposes are
Both questions presented leaving been answered in the affirmative, the petition must be dismissed and judgment go for respondents, and it is so ordered.
Decision en banc: