People ex rel. Attorney General v. Cassiday

50 Colo. 503

• Court: Supreme Court of Colorado
• Decided: April 15, 1911
• Docket: No. 7228
• Status: Published

Opinions

Mr. Justice Bailey

delivered the opinion of 'the court:

This is an original proceeding, in quo ivarranto, in the name of the people, on relation of the attorney general, requiring the respondents, holding and exercising the duties of the office of county commis.sioners of the city and county of Denver, to answer and show hy what authority they assume to hold and exercise the duties of such office. Under the issues, as framed hy the petition and writ and the answer and return thereto, the soundness of the reasoning upon which the conclusions were reached in the case of The People ex rel. Attorney General v. Johnson, 34 Colo. 143, is directly challenged. The application involves, in the main, a consideration and construction of section 2 of article XX of the constitution of the state.

In the Johnson ease, the right to- name in the charter two persons instead of one to discharge the duties devolved by the constitution and general laws upon the county judge, was involved, but the decision was not placed upon the ground that that could not lawfully be done, nor will that question be now considered or decided. That case was determined upon the broad proposition that the people of the whole state could not amend their constitution so as to permit the people of the consolidated body known as the city and county of Denver, by their charter, to name agencies, other than those already provided by the constitution and general laws, to discharge, within that territory, governmental duties relating to state mid county affairs. We therefore direct our attention to a consideration of the application exclusively along these lines.

As in the Johnson case, so now, we are chiefly concerned with an interpretation of this particular section, not to a consideration of article XX as a whole, or the charter of Denver,^ except as they, or some portions of them, may be incidentally involved. Upon the main question we are relieved of the necessity of as full argument and citation as otherwise might be necessary, because of the convincing, exhaustive and unanswerable discussion of the subject in the dissenting opinion of Mr. Justice Steele in the Johnson case, concurred in by Mr. Justice Gunter, and the dissenting opinion of the latter in the case of The People v. Horan, 34 Colo. 304, concurred in by Mr. Justice Steele. • We adopt the reasoning of both of these dissenting* opinions, and refer to and rely upon them, and the authorities cited, to- support the views now expressed, and the conclusions here reached.

Let it first be fully apprehended, a thing which seems to have escaped the attention of a majority of the court in- the. Johnson case, that article XX, as written, is a part of the constitution, of the_ state, the same as any other of its provisions, and is as much in force as any part of the original constitution itself. It is not only a part of the constitution, but it is there to stay, until the authority which voted it in shall vote it out. It, as any other part of the constitution, is to- be given force and effect according to its plain intent, purpose and meaning. When the whole people speak through a fundamental law, or by amendment thereto, not in conflict with the federal constitution, all should hear and heed, more especially the courts, whose function is to interpret, and, where possible, uphold and enforce, not nullify, overthrow and destroy the law. It is not too much to say that, had article XX been written in the original constitution, no one would ever have had the temerity to question the propriety of its provisions and their effectiveness. This article must now be considered, treated and construed as if thus originally written therein.

Section 3 of the article, by express provision, terminated, upon its adoption, the terms of office of all officers of the then city of Denver, of the included municipalities and of the old county of Arapahoe, a portion of which, together with the city of Denver and included municipalities, were then merged into the consolidated municipality of the city and county of Denver. It in effect did away with all county officers and offices, purely as such, in the consolidated territory, and provided a single set of officers or agencies to perform, in the new municipality, all duties of a local nature and all duties pertaining to governmental, state and county affairs as well. The conclusion is irresistible that, since the adoption of that article, and the formation of the city and county of Denver, there has never been, within that territory, a county office or county officer, as such, except only to the extent that this situation may have been affected by the decisions in the Johnson and other so-called'county officers’ cases.

Keeping in mind, then, that, within the territory comprising the city and county of Denver, no county office, or county officer, as in 'other counties of the state, exists, we come to a consideration of the meaning and purpose of that portion of section 2 of article , XX, which reads:

“The officers of the city and county of Denver shall be such as by appointment or election may be provided for by the charter; and the jurisdiction, term of office, duties and qualifications of all such officers shall be such as in the charter may be provided; but every charter shall designate the officers who shall, respectively, perform the acts- and duties required of county officers to be done by the constitution or by the general law, as far as applicable.”

There is no element of uncertainty about this provision. It needs no construction; it interprets itself. The question is, shall it be given its plain, obvious and common-sense meaning, and enforced act cordingly, as other provisions of the constitution are interpreted and enforced? There is no apparent reason for doing otherwise. Why scrutinize article XX in hostile spirit or treat it as an interloper ? It 'is a child of the same parentage as the original constitution. This court has again and again held it to be a part thereof, and it is- so- in all its provisions, and for all purposes, according to its clear intent.

This section does not imply that there is no county or county government within that territory; there is therein a county and a county government, just as both exist in other portions- of the state. Section 2 not only does not, in fact, set aside governmental duties and functions as to state and county affairs in this territory, it does not even pretend to do so, and by no stretch of the imagination can it be fairly held to do so. Neither is there any other provision of article XX which does it. These duties are fixed, absolutely fixed, until changed by the same power which created them. Section 2 expressly recognizes that such duties are in existence and must be discharged, and forthwith proceeds to provide and declare by whom they shall be performed. The whole people of the state have declared, by their fundamental law that this may be done. That was a question of governmental policy for the people to determine, and this policy, when once declared, may not be ruthlessly set aside by the courts, except it is shown to violate in some way the federal compact with the state. It is fundamental that no part of the state constitution itself can be inoperative unless so because in conflict with some provision of the enabling act or the federal constitution. All that article XX purports to do relative to the county offices is to provide that the people of the city and county of Denver, through their charter, shall designate the agencies, which-are to discharge the respective duties and functions which pertain to them. There is no warrant or authority in article XX to the people of the city and county of Denver to alter, change or dispense with such acts and duties. They remain, as before, subject to the constitution and general laws, and are exclusively under the control of the legislature. The people of the city and county of Denver have not been given, and do not have, the power by charter to in any way change the duties of governmental officers, stofar-as they relate to state and county affairs, and there can be no ground for such contention' if article XX be properly read and understood. The city and county of Denver has not been freed from the constitution. It is as much subject to it as any other part of the state. Article XX is a part of the constitution. Upon its adoption certain portions of the constitution, as. it theretofore existed, became inapplicable to- this particular territory, because of the express provision of the new article. This article, to the extent which it undertook to do so, being the last expression of the people upon the subject, modified the constitution so far as it applied to the territory in question, and certain provisions thereof became inapplicable therein. Article XX is a grant of power to the people of the city and county of Denver, where theretofore no power in that respect existed, to do' certain specific things, relative to. the designation of agencies to discharge in. that territory governmental duties fixed by the constitution and general laws. They have just such power and authority in this behalf as the article gives them, no more, no less.

So- that, the opinion of this court in the Johnson case notwithstanding, the sole question is- whether the authority given by article XX to. the people of the city and county of Denver to- name the agencies by which governmental functions in that territory are to. be discharged is subversive of state government and unrepublican in'form? To merely ask the question, in the face of the facts as they a,re known and conceded to be, is to answer it. How, possibly, can the fact that.different agencies than those provided for other counties of the state are in this territory to perforin governmental' duties, when all such functions are carefully preserved and their discharge provided for, be held in any manner to affect state government? What federal inhibition is invaded because the officers so designated may be chosen in the early spring-time rather than in the autumn, that they serve for four years rather than two, that they are designated by one official title instead of another, or that one set of officers is named to discharge the duties in that territory pertaining to both local and governmental affairs, since all such governmental acts and duties are retained 'intact therein and are to be fully performed?

The government, provided for the city and county of Denver by article XX, rests solely upbn the will of the people of the whole’state, and is the creature of such will. It is a full and complete answer to the contention that the government so provided is unrepublican in form, to show that it rests upon the will of the people of the entire state, and may be by the same authority either withdrawn or modified. Since the power still resides with the people of the state to completely annul article XX, or amend, alter or set aside any one or more of its provisions at will, that fact demonstrates that a state within the state of Colorado' has not been created, for were it otherwise, such change in the constitution, by the people of the state at large, would be impossible.

In the case of Watts v. Elder et al., heard and determined in the circuit court of the United States for the district of Colorado, March 2, 1903, where this same article of our state constitution was involved and under consideration, Judge Marshall, who presided at the trial, speaking to' the very point now in question, among other things,,had this to say:

“With respect to its being in conflict with the constitution of the United States, it is said that it in effect creates a state within the boundaries of another state. That contention we do not think well taken. It provides for the creation of a’ municipal corporation resting eventually on the will of the people, established by the will of the people of the entire state of Colorado. That agency of the government is not superior to the creator. ■ Established by the will of the people of Colorado, it may be annulled by the will of the people of Colorado, evidenced by some future constitutional amendment. It is in no sense a sovereign corporation, because it rests on the will of the people of the,entire state and continues only so long as the people of the entire state desire it to continue. That the state has the power of establishing municipal corporations, changing their boundaries and annulling such corporations once established, is, of course, familiar .law. Such municipal corporations are ordinarily created by act of the legislature, hut a state .may create such corporations in the constitution itself by a constitutional amendment, and such corporations may be abolished and changed in like manner. * * * The objection that this charter government may be unrepublican in form is answered, it seems to us, by the same argument. There is no charter yet before the court. The court cannot presume that those formulating a charter may formulate one in violation of the constitution of the United States. .The amendment to the constitution of Colorado does not contemplate a charter, unrepublican in form;, it contemplates one resting on the will of the. people, .one,that.is subject not only to the will of the people in a particular municipality, but is eventually, subordinate to the will of the people of the entire state, as that will may be expressed constitutionally. .There is nothing in the amendment itself, it seems to us, that either expressly or impliedly authorizes the constitution of an unrepublican municipality.” .

In that case, the learned judge found no- difficulty in reaching the confident conclusion, that the article itself neither expressly nor impliedly authorized the construction of an unrepublican form .of government in the city and county of Denver,, and that a charter framed within the terms of that grant would not do so.

Until the ingenuity and invention of the human intellect shall have conceived and formulated — which has not yet been done — some sound, or even plausible reason for the conclusion reached in the Johnson case, that article XX provides for the city and county of Denver a government unrepublican in form, that decision must remain, as it now is, wholly unaccountable and incomprehensible, for it must be that the conclusion rests upon that assumption, else it is wholly unsupported.

It is urged, in the opinion in the Johnson case, that if power to legislate in one particular respecting state and county governmental matters, within the consolidated district, may lawfully be given to the people thereof, then it is equally lawful to do the like in respect to all matters. This contention is upheld by neither reason, logic, nor judicial construction. The complete answer to it is that the people of the state have plenary power, by constitutional amendment, to provide just such methods of government for the state, or any portion of the state, as they please, so long as there is no violation of the federal compact. It is clear that the warrant of authority, given to the people of the city and county of Denver to merely designate the agency by which governmental duties therein shall be discharged, is not obnoxious to any provision of the enabling act or of the federal constitution, and therefore it may be, and has been, lawfully done. No other act of legislation by the people of the city and county of Denver, respecting this particular subject-matter, has been authorized by the article. Had the people undertaken, by constitutional amendment, to give the power to the city and county of Denver to dispense with such duties and functions entirely, or in any way alter or modify them, then a different question would be presented, and it may be admitted that the power to do that does not exist even in the people of the whole state. It will be time enough to consider and dispose of such a question when we are confronted with something' more tangible than a purely speculative and imaginary situation. As matters now stand, there is.nothing whatever in article XX which gives to the people of the city and county of Denver power to legislate upon' anything whatever, concerning matters solely of state and county governmental import, except merely the designation of certain agents to< perform therein the acts and duties incident thereto. It may be that the people of the city and county of Denver have, in some particulars, by their charter provisions, exceeded the grant of power given them, and if so, those matters are for correction in proper proceedings to that end. No such questions are now before this court, either for consideration or decision.

In the case of The People v. Sours, 31 Colo. 369, the opinion declared article XX to be constitutional, and fixed it as a part of the constitution of the state; noi partially constitutional, but constitutional as a whole, throughout its entirety, and in full force and effect. While it was conceded in the Sours case that if the effect of article XX was to- displace the constitution, the general laws of the state and the general assembly in the city and county of Denver, it could not be sustained, it was there concluded and determined that the article accomplished no- such result, although that opinion has been misinterpreted to the contrary effect, and was thus misapplied in the Johnson case. Let it be remembered that the validity of the article was not attacked in the Sours case', because the power had been delegated to the city and county of Denver to designate the agencies to perform governmental duties; its- validity was attacked on the ground, among others, that there would be no governmental dnties whatever within the city and county of Denver ; that governmental duties would not prevail there, and upon that theory, and that alone, upon that branch of the controversy, was the validity of the amendment drawn into question. If the general laws of the state fixing governmental duties and governmental functions, would not apply in this territory, as it was then argued they would not, it was urged that we would have a- state within a state, an imperium m imperio, and a republican form of government would thereby be destroyed, in violation of the guarantee contained in section 4 of article IY of the constitution of the United States. A complete answer was found to this contention in the language of section 2 of article XX; and this court, speaking through Mr. Justice Steele, in the Sours case, supra, declared:

“The provision that ‘Every charter shall designate the officers who> shall, respectively, perform the acts and duties required of county officers to be done by the constitution or by the general law, as far as applicable,’ completely contradicts the assumption that the amendment regards such duties as being- subject to local regulation and control.”

The language of section 2, which rendered it possible and proper to then declare the whole article valid, was in effect eliminated from the article by the majority opinion in the Johnson case. What is the meaning of the language, “Every charter shall designate the officers who shall, respectively, perform the acts and duties required of county officers to be done by the constitution, or the general law, as far as applicable, ’ ’ if it does not mean just what it says? It must mean that, or it means nothing. The language is plain and positive; it is without a trace of ambiguity. It is a part of the constitution. It is so plain that construction is unnecessary. What is to be done with this provisión1? In the Johnson ease, it is utterly ignored and disregarded. In that opinion, it was said that governmental duties are not subject to local control, which is conceded, but that has no bearing upon the question of the authority of the local, government to appoint agencies to discharge these duties, if the constitution has clearly delegated that power. Fo law has been cited, and we confidently assert that none can be found, which shows that it is not competent for a fixed governmental duty to be performed by an agent designated for that purpose by a local subdivision of the state. The meaning of this provision is clear, its terms are unambiguous, the mandate is positive. Something-must be done with it. It should be given effect according to its meaning. By the decision in the Johnson case, this provision was set aside and held to- be empty and meaningless.

In the case, of The People v. Adams, 31 Colo., page 476, speaking for the court respecting- section 3 of article XX, Chief Justice Campbell pertinently said:

“This language is so clear and imperative as to leave no room for construction. It interprets itself. * * * The avowed object of the general assembly in submitting, and the presumed intent of the people in ratifying, this amendment must be given effect if the language therein employed will allow, even if the result be a withdrawal of restraints upon officers which heretofore have been deemed by the general assembly expedient to prescribe, or the consequences destructive of high efficiency in the discharge of public duty. Its validity is no longer an open question. Plaintiffs do not question it. Indeed, they rely upon it for their title. The fact that the writer of this opinion believed it inoperative and void when its validity was directly attacked should not, and does not, lead him to nullify its provisions by hostile construction, nor does it comport with judicial propriety stubbornly to persist in further dissent from a decision acquiesced in by all departments of government. Rather, is it the duty of every member of the court to give effect to the article in accordance with the intent of its framers, as far as it can be done consistent with the language in which that intent has been manifested.”

Let us apply this vigorous and sound language to the mandate of the people, embraced in section 2 of article XX, where they say that the city and county of Denver in every .charter shall designate among its officers thereby created those who shall, respectively, perform the acts and duties required of county officers to be done, under the constitution and general law, and give this provision effect according to its undoubted and obvious meaning, and we have a full, complete, final and lasting solution of all matters here in controversy; and no provision of the constitution has been eliminated, and full force has been given to all of its parts. The constitution may be read from one end to' the other, and there is not a clause in it more certain in its meaning than the words used in imposing the duty upon the people of the city and county of Denver, after creating its own local officers, to designate those who shall perform the acts and duties required of county officers to' be done by the constitution and general laws. Essentially, the whole case rests upon the meaning of this provision and its enforcement. If section 2 does not delegate the power to the city and county of Denver in its charter, to designate agencies to perform these admitted governmental duties, then the conclusion in the Johnson case is right. On the other hand, if such power is delegated by section 2, and if this constitutional provision is to be enforced according to- its plain meaning, the conclusion in the Johnson case is wrong. In the Sours case, it was held competent for municipal officers, under section 3 of article XX, to perform the fixed duties attaching to county officers; it surely is now equally competent for those duties to he performed at this time by agencies designated in the charter. The Johnson case is firmly planted upon the authority of the Sours case, and were it consistent, it would hold that it is competent for the charter to name agencies to perform governmental duties, and also- that article XX is constitutional, in conformity with the reasoning of the Sours case. But the fact is, that the Johnson case declares article XX, in one of its main and most important features, that of permitting the duties pertaining’ to both county and city government to be discharged by a single set of officers,- unenforceable — that is, that a part of the state constitution itself is inoperative. On the other hand, it ostensibly approves and pronounces- sound the conclusions in the Sours case, and then proceeds, not in terms, but absolutely so in effect, to overrule and deny them. In other words, if the Sours case stands, and it is not here challenged, nor has it ever been challenged at any time in any court, the Johnson case cannot. Furthermore, for practically eight years the vast business of the city and connty of Denver has been carried forward, contractual relations assumed, property titles vested, lands for public parks acquired, public improvements made, enormous issues of bonds put forth, all upon the authority of that decision upholding the validity of article XX. No' stronger situation for the application of the rule of stare decisis can be found-or imagined, upon every consideration which invokes its application, in the light of subsequent events, than that surrounding the decision in the Sours case.

Since it was declared in the Sours case that governmental duties themselves are not subject to local control, it is assumed in the Johnson case that agencies to perform governmental duties cannot lawfully be designated by the local government. It is also concluded in that opinion that, because the county still exists, it follows inevitably that county officers eo nomine must also exist. By this course of reasoning, the express provisions of section 2 of article XX are nullified, and the- fact lost sight of that a county may exist without regard to the particular name borne by the agencies performing governmental duties therein, and'without regard to the precise method of the selection of those agencies. The opinion ignores the fact that special and general provisions of the constitution stand together. Neither destroys the other. The special controls that which it was intended to control, and to that extent displaces the general, while the general controls in all cases where the special provision does not apply. Thus we are confronted with the grotesque spectacle of one case decided upon the authority of another, the main features- and principles of which latter case the former flatly overrules.

To the proposition that article XX, being a part of the constitution, controls and supersedes; in so far as the city and county of Denver is concerned, any previous constitutional provisions, in- any way conflicting with it, in its application to- that new municipality, we quote from the opinion of the supreme court of the state of Illinois, in the case of City of Chicago v. Reeves, 220 Ill. 274, as follows:

“In Huston v. Clark, 112 Ill. 344, in considering the effect of the amendment to- the constitution known as section 31 of article IV, on other provisions of the constitution, the court, on page 349, said: ‘The special amendment of the constitution adopted in 1878, so far as it invades the former limitations of the constitution, must prevail, and such limitations are not applicable to the subject-matter of this special amendment.’ * * * In Moore v. People, 106 Ill. 376, in discussing the constitutionality of the Drainage Act of 1879, we said: ‘The act under which the proceedings were had was passed under the authority of this amendment and authorized by it, and if sections 1, 9 and 10 of article IX ever had any bearing upon an assessment of this character after this amendment became a part of the organic act, it would control, regardless of the provisions of the original constitution. ’ And in Wabash Railroad Co. v. Coon Run Drainage and Levee District, 194 Ill. 310s, on page 319, the court said: ‘Section 31 of article IY of the constitution of 1870, as amended, under which the statute authorizing* the appellee district to become incorporated was enacted,- is paramount to constitutional limitations incorporated in the constitution as originally framed, with which it is in conflict. (Huston v. Clark, 112. Ill. 344.) To the extent the amendatory section invades the limitations and safeguards erected by said section 13 of article II and section 14 of article XI of the constitution, for the safety and preservation of private property, the provisions of the amended section must prevail, but in all other respects .those limitations and safeguards repiained unimpaired and in full force and vigor as part of the organic law of the state ’. ’ ’

In People v. Metz, 193 N. Y. Court of Appeals 149, to the same proposition it was said:

“In construing- a constitution, all its provisions relating directly or indirectly to the same subject must be read together, and any amendment in conflict with prior provisions must control, as it is the latest expression of the people. * * ' * The presumption is, that the people, in exercising their supreme pbwer, did not do a vain act, but effected a definite purpose. '* * * Every provision of the constitution as it was before it was amended, which so conflicts with the amendment that it cannot be fairly harmonized therewith, necessarily yields thereto, but only to the extent necessary to make the amendment reasonably effective.”

And again, in Gillespie v. Lightfoot, 127 S. W. 799, the supreme court of Texas said:

“The amendment of the constitution is an exertion of the sovereign power of the people of the state to give to their expressed will the force of a law supreme over every person and every thing’ in the state, so long as it does not conflict with the constitution of the United States. The rule so- established bears down and supplants all other laws and rules that are inconsistent with it. In deter<mining rights controlled by it, we therefore have only to ascertain what it means and give it full effect, so long as it encounters no opposition in the higher law of the federal constitution.”

A careful consideration of the opinion in the Johnson case is bound to lead to the conclusion that the capacity of the people of the state of Colorado to amend their constitution in any way they see fit is denied. There can be but one ground upon which such denial can be predicated, and that is that the covenants with the federal government have been violated, in that a republican form of government is overthrown with respect to the territory embraced within the city and county of Denver. That opinion holds in effect that it is not competent for those who are selected, under the provisions of the charter, to perform the duties resulting from the operation of the general law, even though such designation is positively commanded by the second section of article XX, and thus there is no escape from the conclusion that the Johnson case holds that a portion of article XX is void. The constitution makers are sovereign with respect to their constitution, except that they cannot make a constitution, or any part of one, which is destructive of a republican form of government. The only power which the supreme court has to interfere with the sovereign will of the people is when there is a violation of the federal compact. If the constitution makers, had used doubtful or uncertain language, it is the province of this court to say what is. really meant by such doubtful or uncertain language, but it is neither the duty nor province of this court to substitute any other language for that used by the constitution makers, nor to. place any forced construction upon such language, nor to eliminate any language from the organic law of the people. The decision must therefore mean, in view of the plain provisions, of section 2 of article XX, that the action authorized thereby is subversive of a republican form of government, and tO' this conclusion the court, as now constituted, is unable to assent.

In view of the admitted sovereign capacity of the people to make, alter or change their constitution as they see fit, subject only to the federal compact, it being plain that section 2 of article XX does not conflict with the federal constitution, obviously it ought to be enforced; and since, by the Johnson case, it is held inoperative and void, with that conclusion the majority of this court, as now constituted, does not agree. The fundamental error in the Johnson case lies in the refusal of the court to recognize and enforce, as a part of the constitution, which it is, section 2 of article XX, according to its clear, unmistakable and unquestionable meaning.

But it is said that the decision in the case of The People ex rel. Lawson et al. v. Stoddard et al., reported in 34 Colo., at page 200, based on the authority of the Johnson ease, where the title of the relators to the office of county commissioner was determined in favor of them and against the respondents, the then board of supervisors of the city and county of Denver, is res judicata upon the like question here. The contention is not sound. There is no privity between the respondents here and the relators in the Lawson case. These respondents are serving for a separate, independent and distinct term of office, to which they were elected at a different time, and under different conditions and circumstances from those which surrounded the relators in the Lawson case, their predecessors in office. There is and can be no> privity of interest in title to an office between a predecessor therein and one elected at a different time, to a diffei’ent term, thus holding an independent, separate and unrelated title. The thing determined in the Lawson case was the title of those particular relators, to the office; such determination is the law of that case, and is res judicata upon that question between the parties to that suit and privies to that title, but it has no binding force as to the right and title of some subsequent claimant, asserting claim under a. separate and independent title, obtained at another and different election. Nor does it matter that some purely abstract question of law was determined in a former case, which might be applicable to a later one, and by the application of which the question of the right to an office in the later case might be determined, with a like result to that reached in the former. Whatever force there may be in the contention for such application depends solely on the principle of stare clecisis, not of res judicata. Mere abstract questions of law cannot be made the subject of litigation, so that when once determined, such determination must be applied in all subsequent litigation between other and different parties, simply because the same question of law may be involyed. "Where, in the determination of a case, legal principles are invoked and conclusions thereon reached by the court, whether such conclusions shall be followed in other cases, without further investigation, depends on the rule of stare decisis, not of res judicata. The thing détermined in the particular litigation becomes res judicata, and may not be challenged afterward between the parties, even though the question of law by which the decision was controlled is determined thereafter to have been incorrectly decided and applied, but such decision and application is not necessarily binding on the court in other litigation. The question is squarely settled in the case of State ex rel. Kennedy et al. v. Broatch et al., 68 Neb. 687, where a situation precisely like the one here was presented, discussed and a conclusion reached exactly contrary to the contention of these respondents, and in full accord with the views here expressed. This action and the Lawson case are wholly disconnected, both as to parties and subject-matter.

In the Lawson case the right and title of the relators therein to the office of county commissioner for the city and county of Denver for a particular term, long since expired by limitation, was adjudicated. In the case at bar, respondents are required to- show by what authority of law they now claim the right to hold and exercise the duties of that office for another and different term than the one involved in the Lawson case. The court is at liberty to determine their title to this particular office, and it is its duty to do so, according to their lawful rights, upon principle and authority, as applied to the facts in this case, not- of some other case, and not by the application of the doctrine of res judicata, as the situation not only does not call for such application, hut does not even permit it.

In the Kennedy-Broatch case, supra, beginning at page 702, the supreme court of Nebraska said:

‘‘Assuming, then, that the relators’ claim of right to the office by virtue of appointments made by the mayor is for a different term from the one in controversy and adjudicated in the two prior actions, will those judgments operate as a bar or an estoppel against the respondents who claim by virtue of appointments made by the governor? Do the present appointees of the mayor claim under the same title as that adjudicated in the prior actions, and are they, in a legal sense, as respects such title, in privity with their predecessors in office ? It can not, we think, be said that the respondents in the present action claim under the same right and title as their predecessors. It is true they both derive their authority and right to the office from the same source, but there has been no transfer of the title held by their predecessors to them. Each claims by an independent title derived from one and the same authority for a different term of office. The adjudication as to the rights of the parties for the terms for which they were appointed, whether right or wrong, became final and operated as a complete bar against the other contending parties ever afterwards from asserting title to such office for the term then in controversy, but the rule of res judicata can not, we think, without going to an unwarranted length, be extended any further.. It can not be said that, because of such decision, the court is irrevocably bound for all time to construe the statute unconstitutional, as held in the Moores case, nor that the appointees of the mayor under the ordinance enacted by the city council who are holding under a different tenure,, merely because they are successors of the parties to. the original litigation, can invoke the.doctrine against the appointees of the governor, who are likewise holding- for a different term from that involved in the prior litigation. ’ ’

Numerous authorities have been cited to show that there is privity between the officers now serving and their predecessors in office. An examination of those cases discloses the fact that in every one of them the matter involved had reference, directly or indirectly, to. the rights, powers and obligations of officers, as such, in the discharge of official and public duties. They all involved either a question of taxation, property rights, or the legality of some official act, adjudicated by a former decision in favor of or against a predecessor in office. Those decisions simply determined the manner or method of discharging*, official functions, or determined the question of the duty, liability or obligation resting on an- incumbent in an office by reason of his official character. This is an absolutely different matter from the- question of title to office, the thing determined in the Lawson case, and the thing for consideration here. Obviously a judgment against a public officer, as such, relating' to a public right, duty, power, liability or obligation, attaching to the' office, binds his successor, who, so far as he is affected by such determination, is properly regarded as in privity with his predecessors, deriving authority from the same source. In the case here, the rights of the respondents are to be determined, uncontrolled by tlie judgment in the Lawson case, because the subject-matter involved is not the same, nor áre the- parties the same; nor in respect to. the matter there litigated can these respondents, in any sense, be said to be in privity with their predecessors, wlio held under a different election and for a different term.

We have no dispute with counsel as to the correctness of the law announced in the authorities cited on the question of res judicata. The whole question is begged by the assumption of privity of title between these respondents and the relators in the Lawson case. Were there such privity, that would be an end to this litigation, but no privity in title exists between the parties who are affected, and it is therefore plain that this is not a case for the application of the principle of res jiodicata.

Most vigorous and exhaustive argument, highly instructive and persuasive in character, is urged for the application to the reasoning and conclusions in the Johnson case of the doctrine of stare decisis. We are not unmindful of the importance of this valuable and salutary principle, recognized in every land whose jurisprudence, like our own, rests largely upon precedent. Generally courts will adhere to a former decision, though found to be erroneous, where acquiesced in for a long time, and especially if it has become a rule of property. However, where vital public rights are involved, and a decision regarding them is to have a direct and permanent influence, it becomes not only the right, but the duty of ,a court to fully and carefully reconsider those questions, and permit no- previous error to continue if it can be corrected. The rule of stare decisis rests upon the ground of public policy, and manifestly it would be grievous error to apply it where such application would result in more harm than good. While no mere doubt in the mind of the court, as to the soundness of a previous rule, will either require or permit of its review, it is equally clear that, if such decision is radically unsound, and serves no useful or wholesome purpose, but results only in great and needless hardship, not contemplated by law, and where no serious results are likely to follow its reversal, then the rule of stare decisis does not, and should not be permitted to, interfere to prevent a reconsideration of the principle involved, or with a reversal of a doctrine formerly announced. Of the power of this court to overrule a previous decision, and of its right and duty to do so on proper occasion, there is no' question.

In the case of The Colorado Seminary v. Board of County Commissioners of Arapahoe County et at., reported in 30 Colo., page 507, opinion by Chief Justice Campbell, this court, speaking to the point now under consideration, said:

“This court has gone possibly as far as any appellate tribunal in maintaining the maxim stare decisis. The rule, however, is not inflexible, and the maxim should not be allowed to stand as an absolue bar in the way of a re-examination of legal questions previously decided by the same court, if improperly determined, and particularly where the decision reviewed has not passed into a settled rule of property. This is well illustrated in Calhoun G. M. Co. v. Ajax G. M. Co., 27 Colo. 1, wherein this court overruled one of its former decisions upon an important question of mining law announced fourteen years before and repeatedly reaffirmed.”

In Calhoun G. M. Co. v. Ajax G. M. Co., supra, this court, speaking through Mr. Justice Gabbert, to a like question, said:

“It is contended by counsel for appellee that the ruling in Branagan v. Dulaney and cases following it, is wrong, and that this question should now be reconsidered. In opposition to a reconsideration of the rights of cross-lode claimants, as declared by those cases, it is urged that the doctrine of stare decisis applies, and, even if wrong, should not now be disturbed, because tbe rule therein announced has been established for s.uch great length of time as to become a settled rule of property in this state. We are aware of the gravity of reversing a long-established precedent, and realize that it should not be disturbed except for the most cogent reasons; that the people of this commonwealth have a right to presume that, when a question has been once settled by this court, that its decision is correct and that all may rely upon it. We understand, generally, that when a decision has established a settled rule of property, upon which rights are predicated (and especially those relating to^ real estate), the law will be adhered to by the court announcing it, and those hound to follow its adjudications, even if erroneous (Black on Interpretation of Laws, §152); but this rule is not inflexible. Courts are not bound to- perpetuate errors merely upon the ground that a previous erroneous decision has been rendered on a given question. If it is wrong, it should not be continued, unless it has been so long the rule of action, and relied upon to such an extent, that greater injustice and injury will result by a reversal, though wrong, than to observe and follow it. — Black on Interpretation of Laws, supra; Sutherland’s Stat. Constr., sec. 316; Boon v. Bowers, 30 Miss. 246.”

These two cases, in and of themselves alone, furnish abundant and conclusive authority upon this question. But upon the general proposition that appellate courts have the undoubted right to overrule former decisions, and should do so when they become convinced that such decisions are erroneous and work harmful results, there is a host of authorities. One of the leading cases to this proposition is that of Ellison v. Georgia Railroad Co., reported in 87 Ga., page 691, where Chief Justice Bleckley, in a most unique and highly original opinion, had this to say, all of which, is particularly applicable to the case at bar:

“Soane courts live by correcting the errors of others and adhering' to their own. On these terms, courts of final review hold their existence, or those of them which are strictly and exclusively courts of review, without any original jurisdiction, and with no direct function but to find fault or see that none can be found. With these exalted tribunals, who live only to judge the judges, the rule of stare decisis is not only a canon of public good, but a law of self-preservation. At the peril of their lives they must discover error abroad and be discreetly blind to its commission at home. Were they as ready to correct themselves as others, they could no longer speak as absolute oracles of legal truth; the reason for their existence would disappear*, and their destruction would speedily supervene. Nevertheless, without serious detriment to the public or peril to themselves, they can, and do admit, now and then, with cautious reserve, that they have made a mistake. Their rigid dogma of infallibility allows of this much relaxation in favor of truth unwittingly forsaken. Indeed, reversion to truth in some rare instances is highly necessary to their permanent well-being. Though it is a temporary degradation from the type of judicial perfection, it has to be endured to keep the type itself respectable. Minor errors, even if quite obvious, or important errors, if their existence be fairly doubtful, may be adhered to and repeated indefinitely; but the only treatment for a great and glaring error affecting the current administration of justice in all courts of original jurisdiction, is to correct it. When an error of this magnitude, and which moves in so wide an orbit, competes with truth in the struggle for existence, the maxim for a supreme court, supreme in the majesty of duty as well as in the majesty of power, is not stare decisis, hut fiat justitia ruat coelum.”

In the case of Bardlen v. Northern Pacific Railroad Company, 154 U. S. 288, the supreme court of the United States, speaking through Mr. Justice Field, upon this subjetít, said:

“It is more important that the court should be right upon later and moré elaborate consideration of the cases, than consistent with previous declarations. Those doctrines only will eventually stand which bear the strictest examination and the test of experience. ’ ’

To the same point, we refer to these additional authorities: Allardt v. People, 197 Ill. 501; Board of Commissioners of Jackson County v. State, 155 Ind. 604; Pollock v. Farmers’, etc., Co., 158 U. S. 601; Paul et al. v. Davis, 100 Ind. 422; Kelly v. Rhoads, 7 Wyo. 237; Becker v. Superior Court, 151 Cal. 313; Law v. Smith, 34 Utah 394; Pratt v. Breckinridge, 112 Ky. 1; Robinson; Treasurer, v. Schenck, 102 Ind. 307; McCollum v. McConaughy, 141 Ia. 172; 26 A. & E. Ency. Law, page 184, and authorities there cited.

With the foregoing suggestions in mind, the question is, whether, under the authorities relating to the doctrine of stare decisis and its application, this is a proper case for the employment of that rule. If the decision in the Johnson case is right in principle, it ought to stand; but plainly, if it is'wrong in principle, it should be overruled, since it involves public questions of the highest import, having to do with governmental matters, touching efficiency and economy of administration, and directly affecting the general welfare of the people of the city and county of Denver, and indirectly of the entire state. It involves the construction of a constitutional provision which provides a form of government for the people of that section, not only for to-day, but, it may be, permanently. It is a question of such vital moment that its importance can be neither overstated nor fully realized. The people of the whole state, by constitutional provision, so clear, SO' plain, SO' certain that it interprets itself, have provided that the duties in that territory, relating both to local affairs and governmental matters of state and county concern, shall be performed by a single set of officers who are to discharge double duties. This court, in the Johnson case, has declared that the will of the people, thus expressed, shall not be carried out, and that the constitutional mandate so providing may not be enforced. In other words* by that decision* the people are told that the policy declared is one which will not be recognized, and which the court will not allow to become effective, and thus the expressed will of the people has been ignored, set aside and denied recognition. It is said by that decision that the people will not be permitted to take the step purposed, although it has been held by this court in other cases that the adoption of article XX was a valid exercise of the power of the people to amend its constitution as it sees fit, and that such amendment is not in conflict with any federal provision. One argument in the Johnson case for declining to make effective section 2 of article XX, which, in itself, provides for perfectly legitimate and lawful acts* is that its enforcement is likely to be construed by the people into a permission to them to take unlawful and improper steps, at some future time — that is, go beyond the grant of power found in the article. It is not the function of this court to declare noneffective a clear provision of. the constitution, because of the possibility that the people of the city and county of Denver may undertake to do some unauthorized act thereunder, of a purely imaginary, remote and speculative character. A decision so founded is of necessity unsound in principle, for the fair, just and reasonable presumption is that the people will undertake no such thing, but if they do, the means for adequate protection and complete correction are immediately at hand.

It is unnecessary for this court to say, to escape the application of the doctrine of stare decisis, that the decision in the Johnson case is obviously, palpably and manifestly wrong; such bald statements add nothing to the fact. In the discussion as to the correctness of the reasoning of the Johnson case, it has, we think, been demonstrated that upon no theory can it be upheld. It is distinctively and fundamentally wrong in that it declines to recognize as effective and in operation a provision of the state constitution, about the propriety and meaning of which there is no room for two opinions, and thus the court, in that case, by the strength of judicial power, excludes that provision, although it bespeaks a policy approved and adopted by the whole people, whose, exclusive and sovereign rights and prerogatives, in that behalf, are thereby abrogated and thrust aside as if mythical and unreal.

There is absolutely nothing in the situation here which persuasively appeals to the court for the application of the doctrine of stare decisis. No rule of property has been established by the decision in the Johnson case, and no right of any one is- affected by its reversal, except, possibly, the mere opportunity, not a property right, to hold comparatively unimportant public offices for a narrowly limited space of time. On the other hand, the reasons are many, and controlling, why the court should decline its application. The reasons urged for the conclusions in the Johnson case, which are made applicable in all of the county officers’ cases, are plainly shown to be without merit. The judgments rendered upon that reasoning are wrong*, with reference to the 'enforcement of a fundamental law, permanently affecting* important governmental questions. If the constitutional provision now under review may not be made effective, to • accomplish the results and purposes, manifestly intended, then it may well be doubted whether such results and purposes can ever be obtained by any method at all. This indicates, in a measure at least, how far-reaching and how permanent'in its evil effect the result in the Johnson case may prove if permitted to stand. Article XX is" partially in force in the .city and county of Denver, and has been since its adoption. As to one of its most important features, it is• not in force, and out of this situation grows a conflict of interests, and a confusion of public duties and functions, resulting in a lame and feeble government, administered after a most expensive, inefficient and defective plan, inharmonious and unprecedented. This most unfortunate and distressing state of affairs, so hurtful in matters of great public concern, may be wholly relieved by simply holding section 2 of article XX in force and effect in its integrity, according to its plain meaning.

Much has been said in argument concerning- the disturbance in public affairs likely to attend the overruling* of the Johnson case. The utmost fear and anxiety have been expressed for the future well-being of the pe'ople of the territory directly involved, and direst forebodings are freely indulged, should its overthrow become an accomplished fact. Experience and'Observation establish that frequently, in human affairs, more eager solicitude comes from, and keener anxiety is occasioned by, the fear of anticipated events that never occur, than from those which actually do take place. Should the difficulties suggested, or any of them, take tangible shape and be presented for judicial adjustment, they simply must be met. and disposed of as they appear. For the present, at least, it is entirely sufficient to- know and declare that the plain duty now confronts us of giving force to a clear and positive constitutional mandate, according to its undoubted meaning, in conformity with the intent and purpose of the whole people of the state, as thereby expressed, to the effect that there shall be in the city and county of Denver a consolidated government in fact, and that one set of officers shall discharge double duties therein, at one and the same time, including those which pertain to matters purely local, as well as those which have to do with governmental affairs of state and county.

We conclude, therefore, that the reasoning in the Johnson case ought not to stand. The judgment there entered is the law of the case; it remains undisturbed and is binding upon the parties thereto. We further conclude that, in the city and county of Denver, there are no county officers and can be no county officers, purely as such, and that the respondents are exercising the duties and functions of the pretended office of county commissioner without warrant of authority of constitutional or legislative law.

It is, therefore, considered and adjudged, that the respondents, George D'. Curtice, Samuel D. C. Hays, Thomas Henry, John G. Prinzing and William P. Quarterman, are, and each of them is, guilty of unlawfully intruding into the pretended office of county commissioner, in and for the municipality known as the city and county of Denver, Colorado; that said respondents are, and each of them is, guilty of unlawfully exercising and attempting to exercise the supposed functions and duties incident to said pretended office; that said respondents are, and each of them be, and hereby is, ousted and excluded from said pretended office, and from exercising or attempting to exercise the claimed and supposed functions and duties incident thereto; and that they pay the costs of this proceeding.

Decision en banc.

Chief Justice Campbell and Mr. Justice Gab-beet dissent.

Decided May 1, 1911; rehearing denied June 5, 1911.