HomeMy WebLinkAbout600107.tiffCOLC O4ADO STATE ASSOCIt _
OF
COUNTY COMMISSIONERS ?, /s%; ct
OFFICERS AND
EXECUTIVE COMMITTEE
Hugh Caldwell, President
Meeker, Rio Blanco County
Al Miller. First Vice President
La Junta, Otero County
Orest A. Gerbas, Second Vice President
Woody Creek. Pitkin County
James J. Steffens. Third Vice President
Monte Vista, Alamosa County
John V. Christensen. Fourth Vice President
Littleton. Arapahoe County
J. Fred Schneider. General Counsel b Secretary
Treasurer. Denver. Colorado
Steve Christensen. Past President
Brush. Morgan County
November 7, 1960
The Board of County Commissioners
Weld County
Court House
Greeley, Colorado
Gentlemen:
r.,1
DENVER HEADQUARTERS
MAJESTIC BUILDING
DENVER 2. COLORADO
PHONE ICE 4-6926
J. FRED SCHNEIDER.
GENERAL COUNSEL AND
SECRETARY -TREASURER
You have asked me for an opinion, concerning whether or not
the Board should approve for payment vouchers submitted by. R.G.
Warren, for salary accrued from July 1, 1959 through May 15,1960,
in the amount of $3,922.13, and for mileage and expense totaling
$136.01, for approximately the same period.
There has been submitted for my perusal the pleadings in
Civil Action No. 13982 of the District Court of Weld County,
entitled "The People of the State of Colorado On the Relation
of Donald L. Stewart,
Plaintiff
vs.
Robert G. Warren,
Defendant,"
also the Findings, Conculsions and Judgment of the Trial Court,
together with a copy of the decision of the Supreme Court of the
State of Colorado, in case No. 19176 entitled,
"Robert G. Warren,
Plaintiff in Error
vs.
The People of the State of Colo-
rado, on The Relation of Donald
R. Stewart."
Board of County Comsrs.
Page 2
11/7/60
You have also supplied me by letter with some additional
facts to wit:
"That Mr. WarregUid not appear at the 1959 Budget
making. He made no effort to review or suggest
pertaining to the 1960 Weld County Budget.
"He was not present at any auditor's report from
July 9, 1959 to May 20, 1960.
"Mr. Shultz
to come to
bought for
"Mr. Warren
meetings.
"Mr. Warren
except two
during the
1960.
called Mr. Warren on different occasions
the office pertaining to equipment being
his district.***
never appeared at any of the requested
was not in the Commissioners' office
or three -brief, unannounced appearance
period of July 9, 1959 to about May 20,
"Mr. Shultz, at various times in chance meetings with
Mr. Warren, told Mr. Warren he could come in at any
time and make suggestions on county matters -none of
these suggestions were responded to.
Mr. Warren resigned as Commissioner from District
No. 1 about May 15, 1960 and was re -appointed to
fill the vacancy by Governor McNichols, on or about
the same date and is presently holding that office
under this appointment.."
A request for my opinion was concurred in by County At-
torney S. Robert Houtchens, who was counsel for Warren in the
Trial Court.
From an examination of the documents submitted and a
perusal of the record and briefs in the Supreme Court and by
an independent research of the law, I conclude as follows:
1. The Supreme Court in its opinion stated and
I quote:
"During the oral argument in this
Court it was agreed that, subsequent to
Board of County Comsrs.
Page 3
11/7/60
the time the final judgement was entered
in the trial court, Robert G. Warren
resigned as commissioner from said
district. The only issue properly before
this Court for determination has accordingly
become moot. The cause is remanded to the
trial court, with the directions to vacate
the judgment heretofore entered and to dis-
miss the action.
"In view of the suggestion of counsel
that the right of Weld County to recover
salary paid to Mr. Warren for a period of
time prior to his resignation and the right
of the latter to recover other emoluments of
office from the county may be the subject of
further litigation, we expressly direct that
the disposition of this cause in the trial
court, and by this Court, shall in no par-
ticular prejudice the claimed rights of any
party to any such litigation."
The action of the Supreme Court in vacating the judgment
and dismissing the cause would ordinarily have the effect of
reversing the trial court and be favorable to the plaintiff
in error, see Ward v Marshall 96 Calif 155, 30P1113, were it
not for the last paragraph of the opinion which in effect
infers additional litigation.
It is unfortunate for Mr. Warren as well as the Board of
County Commissioner that this matter turned on the resignation
and,as the Court said,became "moot" as the question of the
constitutionality of the statute 35-3-6 CRS 1953 was raised on
appeal and I believe justly so as Sec. 3 Art. XIII of the Colo-
rado Constitution does not permit the forfeiture of a consti-
tutional office by a legislative disqualification which was the
basis of the trial court's decision. In no sense could Mr.
Warren's actions have been construed as "misconduct or mal-
feasance"as required by Sec 3 Art XIII of our Constitution.
While the trial court determined the violation of a
statute, namely 35-3-6 by Warren and thereby the office which
he held became vacant. I think the holding of the trial court
was erroneous for the reason that the Legislature had no power
to forfeit a constitutional office except for"misconduct or mal-
Board of County Comsrs.
Page 4
11/7/60
feasance" as provided for in Article XIII Sec 3 of our Consti-
tution.
The acts of the Legislature must be subordinate to the
restraints of the fundamental law. People v Howland, 155 NY270,
41 LRA 843, 49 N.E. 775.
When the main purpose of a statute, or a part of a statute,
as here, is to evade the Constitution by effecting indirectly
that which cannot be done directly, the act is to that extent
void because it violates the spirit of the fundamental law.
It should be borne in mind that the office of County Com-
missioner is a county office, not a precinct office or district
office within the county - he is elected by all of the people
of the county, not a section or district within the county and
for the Legislature to say that the removal of his residence from
one part of the county to another creates a vacancy is an at-
tempt by the Legislature to pronounce a statutory death sentence
upon a constitutional officer in violation of the fundamental
law.
In 43 Am. Jur. Sec 182 appears the following:
"Where the Constitution prescribes the method
of removal and the causes for which public
officers may be removed, the method and grounds
established is beyond the power of the Legis-
lature to remove incumbents in any other manner
or other cause." People v Howland supra; see
also list of cases cited 41 LRA 838.
The Constitution says "he shall only be removed for mis-
conduct or malfeaseance" in State ex rel Matson v O'Hern, 104
Mont 126, 65 P. 2"619, 625. "The word "misconduct" as used in
this constitutional provision, has been explained as "any act
involving moral turpitude, or any act which is contrary to
justice, honesty, principle, or good morals, if performed by
virtue of office or by authority of office."
The word "malfeasance as ground for suspension has
reference to "evil conduct" or "illegal deed." Hardie v
Coleman 115 Fla 119, 155 So 129, 92 ALR 988. Surely it cannot
be said that Mr. Warren's action in moving from one part of the
county to another would come under these definitions.
Board of County Comsrs.
Page 5
11/7/60
The question of whether or not the Board should honor the
request for payment submitted by Warren would have to be answered
in the affirmative were it not for other provisions of our Consti-
tution. Even though* the Board might feel as I do, that 35-3-6 is
unconstitutional, it behooves the Board in its ministerial function
to regard the act as constitutional as "The right to declare an
act unconstitutional is purely a judicial power and cannot be exer-
cised by the officers of the executive department under the guise
of their observance of their oath of office to support the Consti-
tution." State ex rel Atlantic v Board of Equalization 84 Fla
392, 94 So 681, 30 ALR 362 and in People v Pitcher 61 Colo 149 at
Page 158 our Supreme Court said
"It is the imperative duty of a ministerial
officer to obey the act of a tribunal invest-
ed with authority in the premises and direct-
ing his action; not to question or decide
upon its validity."
We come now to the provision in our Constitution which
should be controlling and that is Sec 2 of Article XII which
provides
"Personal Attention Required - No person shall hold
any office or employment of trust or profit, under
the laws of this state or any ordinance of any
municipality therein, without devoting his personal
attention to the duties of the same."
As a general rule an officer does not lose his right to the
salary by his neglect to perform his official duties, at least
where such neglect does not amount to an abandonment of his office.
43 Am Jur Sec 379.
The only case construing Sec 2 Art XII in this state is
People v Owers 29 Colo 535 in which Quo Warranto proceedings were
brought against a district judge, who was absent from his district
for long periods of time. His defense was illness and the court
dismissed the proceedings as not constituting an abandonment.
The Supreme Court of the United States in Nicholas v U.S.
257 US 71, 42 S Ct. 7 said
"We agree with the Court of Claims that a
person illegally dismissed from office is
not thereby exonerated from obligation to
take steps for his own protection and may
Board of County Comsrs.
Page 6
11/7/60
not for an unreasonable length of time
acquiesce in the order for removal, and
then recover for the salary attached to
the position."
and in US v Lane, 249 US 367,39 S Ct. 293; 63 L Ed. 650 it was
held a delay of 20 months was laches.
In 21 C J. P 1060 Sec 6 under Estoppel "a neglect to do
something which one should do or to seek to enforce a right at
the proper time has been termed with questionable propriety,
"Estoppel by Laches!"
said
Could it be/that/Warren from July 9, 1959 to May 20, 1960
gave his personal attention to the office of County Commissioner
of Weld County as required by Sec 2 of Art XII?
Not from the facts submitted as set out above, except Mr.
Schultz did discuss the purchase of equipment with Mr. Warren
and he, Warren, did make "brief, unannounced appearances"
during the time in question.
Should the Board approve the vouchers submitted by Warren
and pay the claims for salary and expenses? What would the
position of the County be? If paid under a mistaken belief of
a legal liability the County could not recover. Badeau vs US
130 US 439, 9 S Ct. 579. In that case the government sued an
army officer for a large sum while at the same time he was
accepting pay in the diplomatic service and was not, in fact,
in the Army; and it was held that the government could not
recover back this money so paid under the mistaken belief that
there was a legal liability therefor. Also in Painter v Polk
County 81 Iowa 242, 47 N E65 it was held a county could not
maintain an action to recover fees paid a sheriff under a
mutual mistake of law.
While you stated in your request for an opinion that the
Board felt that Mr. Warren should be paid in accordance with
these vouchers. Had Warren attended the Commissioners meet-
ings and submitted his vouchers each month for his salary and
expense, regardless of the trial court decision which later was
vacated, there would be no question about his being entitled to
payment.
When the Supreme Court vacated the decision of the Trial
Court and dismissed the action, it had the effect of reinstating
Warren as a de jure County Commissioner and he was entitled to
his salary up until he resigned his office as such Commissioner.
Board of County Comsrs.
gage 7
11/7/60
Therefore,
together - the
cating that he
holding office,
thing he could
to the Supreme
it is my opinion that all of the facts considered
appeal of the Trial Court's decision by Warren indi-
still considered himself as a County Commissioner
but in deference to the Court's opinion the only
do was challenge that decision, by taking the matter
Court for a final decision.
The fact that he made trips around the county, as
by the expensdvoucher,would have some bearing as to his
of remaining a County Commissioner.
The further fact that the Board of which he was a member
looked upon him as a continuing member of the Beard and invited
his suggestions, would indicate that they felt he was still a
member of the Board of County Commissioners.
Finally 35-1-5 CRS 1953, as amended by Chapter 105 of the
1957 Session Laws, authorized the Board of County Commissioners
to give a suspended county official his back pay when "found
not guilty on appeal, original trial or new trial." This is on
conviction of a felony - which was not the case here.
It would appear, therefore, that when the judgment was vacated
and the action dismissed on appeal, that the above cited statute
should authorize the Board to approve the vouchers submitted by
Warren and would be a compliance with the bond statute namely,
35-3-11 CRS'53.
expressed
intention
It is my opinion that Warren is entitled to his back
under the facts and the law applicable to such facts.
Respectf Sub
J. Fred Schneider
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