(12 Colo. 466) In re HOUSE BILL No. 122. {Supreme Court of Colorado. Dec. Term, 1886.)1 COUNTIES-DIVISION-INDEBTEDNESS. " give its opinion upon important questions upon solemn occasions, when required by the governor, the senate, or the house of representatives: and all such opinions shall be published in connection The proposed new county of St. Vrain, composed with the reported decisions of the court. Held, of portions of the counties of Weld and Larimer, that executive questions must be exclusively pub will, under the constitution, be liable for a ratalici juris, and legislative questions must be conble proportion of the debt of the present county of nected with pending legislation, and relate either Boulder. to the constitutionality thereof, or to matters connected therewith of purely public right. The bill in question is entitled "A bill for an act to establish the county of St. Vrain, and to provide for terms of court therein." PER CURIAM. Our opinion is solicited as to the constitutionality of section 9 of said bill, and our attention is directed to sections 4 and 5 of article 14, section 12 of article 15, and section 25 of article 2, of the constitution. The question, as stated, is: "In the event of the passage of said bill, will the people of those portions of the counties of Weld and Larimer which are included within the limits of the proposed new county of St. Vrain be responsible for the payment of the whole or any part of the debt of the present county of Boulder?" While sections 4 and 5 of article 14 of the constitution relate to a common subject, viz., the pro rata payment of existing liabilities upon a subdivision of a county or counties. yet they relate to this subject under wholly different circumstances 2. The question whether a bill proposing to increase the fees of district attorneys will apply to the district attorneys now in office is not one requiring in advance the opinion of the supreme court. The resolution and question submitted to the court read as follows: "Whereas, senate bill No. 65 proposes to materially increase the fees and emoluments of the several district attorneys in the state: Therefore be it resolved, that the supreme court be requested to answer the following question: Will the provisions of senate bill No. 65 apply to the district attorneys now in office?" The constitutional amendment adopted in the fall of 1886, and construed in the opinion of the court, reads: "The supreme court shall give its opinion upon important questions upon solemn occasions, when required by the governor, the senate, or the house of representatives; and all such opinions shall be published in connection with the reported decisions of Amendment to section 3, art. 6, the court." Const. and conditions. A distinct and different rule is likewise provided for each case. Section 4 refers to the liabilities of a new county HELM, C. J. The framers of our constitucreated out of a part or parts of one or more existing counties. Section 5 has no refer- tion specified the jurisdiction to be exercised ence to the formation of a new county, but by this court. They declared that, with certo the division of an existing county, where-tain designated exceptions, this jurisdiction by a portion of its territory is stricken off should be purely appellate and supervisory. and added to another existing county. In the first case, the new county, as a distinct organization, is "held to pay its ratable proportion of all then existing liabilities of the county or counties from which such new county shall be formed;" in the second, the original liability of the part stricken off is continued. This construction of said sec A few writs and proceedings were named, in with original jurisdiction. Section 3, art. 6. The section mentioned has been construed by this court as applying only to cases where questions publici juris are raised, thus excluding from this branch of its jurisdiction all controversies wherein private rights alone are involved. Wheeler v. Irrigation Co., 9 Colo. 248, 11 Pac. Rep. 103. The connection with which the court was clothed reasons for this construction are obvious and referred to, and will not here be restated. potent. They are considered in the opinion The provision authorizing legislative and executive questions was not originally a part of the constitution. It has been in effect of the original jurisdiction of the court conless than three years. It is an enlargement tions 4 and 5 is not inconsistent with section 25 of article 2 of the constitution, and, the provisions of said section 4 being special provisions for specified objects, they are not affected by section 12 of article 15. We are of opinion that the bill submitted presents a case falling within the provisions of said section 4 of article 14, and that section 9 of the bill is in conflict therewith. In answer to the question submitted, we say that the new county, as a whole, will be liable for a rata-ferred by said section 3 of the judiciary artible proportion of the existing debt of Boulder county. cle. It adds to the list of writs there speci fied an unique and important proceeding,unique, because, as we shall presently see, it is devoid of nearly all the usual indicia of judicial proceedings; important, because of its consequences. All of the reasons relied upon for confining the writs specified in section 3 of article 6 to questions publici juris apply with even greater force to the novel proceeding authorized by the provision before us; for, while this proceeding is original, and in that respect similar to the other original proceedings referred to, yet it possesses char acteristics peculiar to itself. Not only should | sons, we hold that the intent could not have its operation be confined to questions publici been to authorize questions of fact, but our juris, but, as we shall endeavor to show, responses must be reported as are other opineven questions of this character should rarely ions, and they have all the force and effect be thus presented or considered. It will be of judicial precedents. observed that the authority conferred is accompanied by an express limitation. While the question must be one relating to purely public rights, it can only be propounded upon solemn occasions, and it must possess a peculiar or inherent importance not belonging to all questions of the kind. It is impossible to state any absolute rule by which the sufficiency of this importance and the degree of this solemnity can be determined. These are matters that rest largely in the discretion of both the legislature and court; for, while the legislature is first to judge of the relative importance and solemnity justifying a given question, it has been held that the justices have also a voice in deciding whether jurisdiction should be entertained. Opinion of the Justices, 49 Mo. 216. The court will seldom question the action of the legislature in this respect, but the right so to do should not be denied. It is submitted, however, that, for reasons hereinafter stated, the greatest caution should be employed, both by the legislature and court, in exercising the discretion just mentioned. As already suggested, there are peculiar reasons for excluding from the purview of the provision before us legislative and executive questions affecting private or corporate rights,-reasons not applicable in the exercise of the original jurisdiction of the court in connection with the other original writs or proceedings provided for. It is a principle declared by our constitution, (section 25, art. 2,) and of universal recognition, that no person shall be deprived of life, liberty, or property without due process of law. But there cannot be due process of law, unless the party to be affected has his day in court. Yet a careless construction and application of this constitutional provision might lead to the ex parte adjudication of private rights by means of a legislative or executive question, without giving the party interested a day or voice in court. When this tribunal exercises its original jurisdiction by entertaining any of the other proceedings specified in the constitution, process must issue, the parties to be affected must have notice, and they must be given an opportunity to appear and be heard, both in person and by counsel; so that, even though the primary and principal purpose of the proceeding be to adjudicate a matter publici juris, yet there is a compliance with the fundamental requirement relating to due process of law. This consideration greatly reinforces the proposition that it could not have been the purpose of those who framed the amendment to permit such ex parte adjudications by means of executive or legislative questions. We have no hesitancy in reaffirming what we have already declared, that "parties must still adjudicate their rights in the ordinary and regular course of judicial proceedings. In re Senate Resolution on Irrigation, 9 Colo. 621, ante, 470. Only five states of the entire Union have ventured to adopt and retain constitutional provisions in any way analogous to this con- Nor could it have been the intention of the stitutional amendment. At one time there authors of this amendment to permit the existed in Missouri a provision somewhat presentation of questions relating to the similar, but the framers of the Missouri con- policy of proposed legislation. A proper restitution of 1875, profiting, we suppose, by gard for the constitutional arrangement of experience, excluded the same therefrom, the different departments of government, and and we are not aware that any effort has the constitutional powers and duties devolved since been made looking to its restoration. upon each department, forbids the conclusion But Colorado has gone further than the states that this court can have anything to do with referred to, in this doubtful and perilous ex- such matters. It is clearly not authorized to periment, by adding two peculiar features, give its advice upon any question of fact or one of which at least seriously increases the of policy. It is the peculiar and exclusive danger. By the express words of the corre- province of the legislature, so far, at least, as sponding provisions in each of the other states the judiciary is concerned, to judge of the the questions are limited to questions of law, necessity or desirability from a political or and the justices, not the court, are to re- economic stand-point of each and every act spond. These officers appear to be merely proposed. The history of this constitutional legal advisors, occupying much the same re- amendment may be consulted with advantlation in this regard to their respective gen-age in the endeavor to discover its purpose. eral assemblies as does the attorney general The successive legislatures meeting after the of Colorado to the state legislature. Their admission of Colorado to statehood encounwritten responses, when questioned, are not always published in the reports. They are not pronounced by the court, and hence are not technically judicial decisions, nor do they necessarily constitute judicial precedents. In this state, on the other hand, the interrogatories are not expressly limited to questions of law, and it is the court, not the justices, that must answer. For obvious rea tered great difficulty in the enactment of laws, directly involved, yet it is obvious that a false interpretation by us of a constitutional provision, or a mistaken opinion upon a question purely publici juris, may indirectly lead to the most grievous consequences. unconstitutional legislation might be avoided, courts that are directly affected, and no apby having the validity of proposed legislative parent rights or interests of private parties acts thus determined in advance. Corroborating the conclusion that the foregoing was the primary and principal purpose of the amendment, we have the contemporaneous construction of the legislature. All the questions propounded by the general assembly of 1887, which was the first to meet after the adoption of the amendment in question, rested upon legislative doubts as to the constitutionality of certain proposed acts or parts of acts. This consideration is peculiarly significant, because it tends strongly to show the view entertained by the legislative representatives of the people, chosen at the same election at which the amendment itself was adopted. It must be presumed that these representatives comprehended, and by their action expressed, the understanding of the people in relation there to. The question presented in this case suggests, neither through the preamble nor the resolution, any matter of constitutional difficulty; nor is it such a matter otherwise publici juris as would warrant our entertaining jurisdiction upon that ground. It does not even, so far as we can perceive, relate to the action of either branch of the general assembly upon the bill mentioned. We are asked to construe the future effect of the proposed bill in its application to the fees of certain public officers. The matters specified are proper subjects for judicial action, and will doubtless be litigated through ordinary Upon mature investigation and reflection, judicial proceedings. The court has always we are of the opinion that executive questions conscientiously endeavored to observe the remust be exclusively juris publici, and that quirements of all constitutional provisions, legislative questions must be connected with including the one now under consideration; pending legislation, and relate either to the and it will in the future, as in the past, ever constitutionality thereof, or to matters con- take pleasure in rendering such assistance to nected therewith of purely public right. We the executive and to each house of the legisbelieve that the accuracy, as well as the wis-lature as shall be consistent with its position dom, of this interpretation will commend as a separate and independent branch of the themselves alike to the legislative judgment government, and also in harmony with what and the legal mind. But even with this con- is deemed a sound exposition of the constitustruction there is danger of grave abuses. tion. But in view of the foregoing considEfforts will still be made by private parties erations, were the general assembly still in to anticipate judicial rulings in the ordinary session, we would respectfully ask that the course of litigation, by inducing the submis- question be recalled. sion and decision of questions ostensibly publici juris. We feel constrained to repeat and emphasize the thought heretofore expressed, that the utmost vigilance and caution be exercised by both the general assembly and the court in acting under this novel constitutional authority. There cannot well be too much moderation in the premises. We note that, in those states which permit consultation with the justices, the privilege seems to be less often invoked then it has been here. The attorney general is the natural, as well as the statutory, legal advisor of the executive and legislative departments. His counsel should be solicited, and only as a dernier resort, upon the most important questions and the most solemn occasions, should the court be requested to act. (12 Colo. 186) In re CONSTITUTIONALITY OF PROPOSED REAPPORTIONMENT BILL. House Resolution. (No. 2,415.) Senate Resolution. (No. 2,420.) (Supreme Court of Colorado. Jan. 18, 1889.) LEGISLATURE-REAPPORTIONMENT. eral assembly shall provide by law for an enumerConst. Colo. art. 5, § 45, provides that "the genation of the inhabitants of this state in the year of our Lord 1885, and every tenth year thereafter; and at the session next following such enumeration, and at the session next following an enumeration made by authority of the United States, shall revise and adjust the apportionment for senators and representatives on the basis of such enumeration, according to ratios to be fixed by law." Held that, where a reapportionment bill passed at It must always be remembered that we are the next session after the enumeration of 1885 was compelled to discharge the duties of both vetoed by the governor, a reapportionment bill court and counsel; that the exigencies, which might be passed a. the next session thereafter, e. of necessity require speedy answers, render it, the second session after such enumeration. impossible to bestow upon these questions the research and deliberation usually given to judicial proceedings by courts of last resort; and that for these reasons our embarrassment is seriously enhanced, while the possibility of erroneous decisions is, of course, augmented. Although no questions be propounded or answered save those which relate to the constitutionality of legislation, or to other matters purely and exclusively publici juris, and although there be no causes pending in the For the provision of the constitution involved in this question, and an account of the previous legislation which affects it, see the case immediately following this. PER CURIAM. The question submitted is, "Can a bill be passed at this session of the general assembly for a legislative apportionment of this state which will not be in conflict with section 45, art. 5, of the state constitution." The statutes containing no act adopted since the year 1885 relative to the matter submitted, we answer the question propounded affirmatively. (12 Colo. 187) 2. The right of local self-government in cities and towns is generally a matter pertaining to the policy or wisdom of legislation, rather than a ques. tion of constitutional construction. The sections of the bill referred to, that are submitted, create a board of public works In re SENATE RESOLUTION RELATING TO CONSTI- for the city of Denver, the members of which TUTIONALITY OF PROPOSED BILL. (No. 2,420.) REAPPORTIONMENT are to be appointed by the governor with the advice and consent of the senate. Such board (Supreme Court of Colorado. Feb. 1, 1889.) is charged with numerous duties, and enThe same matter was submitted by a preamble and resolution from the senate, as follows: "Where- dowed with extensive powers, in relation to as, section 45, art. 5, of the constitution of the state the expenditure of city funds, the payment of Colorado, provides as follows; Sec. 45. The and cancellation of certain outstanding citygeneral assembly shall provide by law for an enu- warrants, and the making of certain public meration of the inhabitants of the state in the year of our Lord 1885, and every tenth year thereafter; improvements. It also possesses a large suand at the session next following such enumeration, pervisory control over contracts of the city and at the session next following an enumeration council involving the expenditure of $5,000. made by the authority of the United States, shall In relation to this measure the senate by resorevise and adjust the apportionment for senators and representatives on the basis of such enumera- lution submitted the following question for tion, according to ratios to be fixed by law and determination: "Whereas, a bill containing whereas, the last enumeration of the inhabitants of the state of Colorado was made in the year 1885; certain amendments to the city charter of and whereas, at the session of the general assem the city of Denver is now before the legislably of the state next following such enumeration, ture, among which is one providing for the to-wit, at the session of the sixth general assem- appointment of a board of public works by bly convened and held in the year 1887, a bill was his excellency, the governor; and whereas, introduced revising and adjusting the apportionment for senators and representatives on the basis doubts exist in the minds of many persons of such enumeration, according to the ratios there- whether or not such appointment can be in fixed; and whereas, said bill passed both houses made by the governor, and whether or not of the said general assembly, but failed to receive the approval of the governor, and by reason there- the legislature can pass any amendment to of did not become a law; and whereas, at this ses- the charter which confers upon a board so sion of the general assembly, being the second appointed the power to expend the money of session following such last enumeration of the inhabitants of the state, a bill has been introduced the city in making public improvements: into the senate fixing the ratios of representation, therefore be it resolved, that the supreme and revising and adjusting the apportionment of court be, and they are hereby, requested to senators and representatives on the basis of such render an opinion upon the constitutionality in the year 1885; and whereas, grave doubts exist of such amendments, a copy of which is hereas to the constitutionality of such a law, if enacted to annexed." at this session of the general assembly: therefore, be it resolved by the senate of the seventh general assembly of the state of Colorado that the supreme court be requested to give its opinion as to whether or not the general assembly can at this session, in accordance with the provisions of the constitution, pass a bill revising and adjusting the apportionment of senators and representatives on the basis of the enumeration of the inhabitants of the state made in the year 1885. " enumeration of the inhabitants of the state made ** "" SION. 1. Const. Colo. art. 5, § 35, providing that the legislature "shall not delegate to any special commission, private corporation or association, any power to make, supervise, or interfere with any municipal improvement, money, property, or ef fects, or perform any municipal function whatever," does not prevent the legislature from creating a board of public works for the city of Denver, the members of which are to be appointed by the governor with the advice and consent of the senate, charged with duties and endowed with powers relating to the expenditure of city funds, the payment and cancellation of outstanding city warrants, and the making of public improvements. Such board is not a "special commission, " but a permanent department of the city government. v.21p.no.6-31 PER CURIAM. Municipal corporations are creatures of legislative enactment; and, in the absence of inhibitory or limiting constitutional provision, the general assembly has plenary power to adopt such measures as shall in its judgment be most conducive to their efficiency and usefulness. This principle includes the manner of filling municipal offices. 1 Dill. Mun. Corp. §§ 58–60; State v. Seymour, 35 N. J. Law, 47; County Court v. Griswold, 58 Mo. 175; Daley v. City of St. Paul, 7 Minn. 390, (Gil. 311.) There is no constitutional provision expressly withholding from the legislature power to authorizo the appointment by the governor of such municipal officers as are contemplated by the act before us. On the contrary, section 12 of article 14 declares that "the general assembly shall provide for the election or appointment of such other * * municipal officers as public convenience may require," (the word "municipal," thus used, is, in our judgment, not confined to counties, townships, and the like;) and, in the absence of contrary legislative or constitutional direction in the premises, the power to fill all offices by appointment is expressly lodged in the governor, subject to the approval of the senate. Section 6, art. 4. We find no indirect or implied inhibition relating to the subject before us, unless it exists in section * * * * Section 6 of 35, art. 5, of the constitution. This section | cial legislation. Darrow v. People, 8 Colo. reads: "The general assembly shall not dele- 426, 8 Pac. Rep. 924, and cases cited. There gate to any special commission, private cor- is strong reason for recognizing, so far as poration or association, any power to make, may be compatible with the general public supervise, or interfere with any municipal interests, the right of local self-government improvement, money, property, or effects, in cities and towns; but this is, with us, or perform any municipal function generally a matter pertaining to the policy whatever." And it is obvious at a glance or wisdom of proposed legislation, rather that, if this clause controls the legislative than a question of constitutional construcdiscretion in the premises, it is because the tion. We must not, however, be understood board of public works, as constituted by the as saying that any and every direct legislaact under consideration, is a "special com- tive interference with local municipal affairs mission," within the meaning of that phrase would be free from constitutional objection. as it was understood by the framers of the We confine our answer, with a single excepconstitution. This we do not think, for the tion, to the specific questions propounded, following, among other, reasons: The board and hold that the provisions referred to in in question is made a department or branch the act before us are not obnoxious to the of the city government. Its power to invest constitutional objections suggested thereby. money in public improvements is for the Our opinion is not solicited upon the constipresent confined to the expenditure of $3,000,- tutionality of all the minor provisions of the 000, but its authority is not limited to this act, and we do not consider them, but we expenditure, and upon making the same its shall take the liberty of expressing a doubt existence does not terminate. It is, like the with reference to the legality of fixing the board of health, fire, and other departments, term of office for members of the board in permanent in its nature, being charged with question at six years. See Const. § 12, art. certain continuous duties and vested with 14, supra. certain perpetual powers. These duties and powers are extensive, and in some respects ELLIOTT, J., (concurring.) unusual, but they relate exclusively to mu- article 4, and sections 12 and 13 of article 14, nicipal affairs, and are essentially functions would seem to furnish express authority for of the municipal government. The board vesting in the governor the appointment of has no separate existence, office, or authority. the members of the proposed board, provided It is an administrative agency or instrument, their term of office be limited to a period not employed exclusively in the control and man- exceeding two years. If the board of public agement of the city's improvements and other works contemplated by the proposed enactinterests. In no material respect, save as to ment is of such a character, by reason of the the scope and extent of its duties and powers, manner of its creation or the scope of its does it essentially differ from the other de- powers, that it must be held to be a special partments by means of which the public in- commission, within the meaning of section terests are promoted, and the public health, 35, art. 5, of the constitution, then the delepeace, and welfare protected, within the gation to it of power to expend money municipality; nor is it an unusual agency, and make municipal improvements is clearly though, as above suggested, in some respects unconstitutional. Bouvier defines a "comits powers are extraordinary. The necessity mission" to be "a body of persons authorized for boards of public works is shown, and to act in a certain manner." Webster says their usefulness is demonstrated, by their a "commission" is "a company of persons continued existence in other cities. If the joined in the exercise of some duty or the board of public works, as provided for in the charge of some trust." In legal phrases, bill before us, is a "special commission," the word "special" is most frequently used within the meaning of this constitutional as denoting something particular or limited, phrase, it must become such by virtue of the in contradistinction to general or permanent. manner in which its members receive their Bouvier speaks of a "special" agent as one appointment. But we are satisfied that such "whose authority is confined to a particular a conclusion would be wholly untenable. The or individual instance;" of a "special" jury board of supervisors of Denver perform "mu- as "one selected in a particular way by the nicipal functions," but should the general parties;" and of a "special" constable as assembly enact that the members of this "one who has been appointed a constable for board shall be appointed by the governor, a particular occasion, as in case of an actual with the advice and consent of the senate, it tumult or a riot, or for the purpose of servwould not follow that the body would there-ing a particular process. "Special adminisby become a "special commission." The tration," says Blackstone, is "where only mayor of Denver also performs municipal specific effects of the deceased are committed functions, but it would hardly be contended to the administrator." In my opinion, the that his appointment by the governor, in term "special commission," as used in the case the statute so provided, would constitute constitutional provision under consideration, him ipso facto a "special commission" or refers to some body or association of individcommissioner. Amendments to the city char-uals separate and distinct from the city govter of Denver are not forbidden by the con- ernment; that is, created for different purstitutional inhibition relating to local or spe- poses, or else created for some individual or |