People ex rel. Riordan v. Hersey

196 P. 180, 69 Colo. 492

• Court: Supreme Court of Colorado
• Decided: January 10, 1921
• Docket: No. 9774
• Status: Published

Opinions

Mr. Justice Bailey

delivered the opinion of the court.

This is an original proceeding in mandamus, by the People of the State, on the relation of Patrick R. Riordan, against the judges, respectively, of the district, county and juvenile courts of the City and County of Denver. The action involves the right to the office of Jury Commissioner for such City and County, and by the writ it is sought to direct the defendants to annul, set aside and cancel an order of January 6, 1920, whereby under the Jury Commissioner Act, (S. L. 1911, p. 479), they appointed one Frank W. Howbert to that office. The petition also prays that the defendants be likewise directed to enter an order reinstating the relator in office, he having been the incumbent at the time Howbert was appointed. A majority of the defendants have filed a general demurrer to the alternative writ.

At the time Howbert was appointed the state civil service amendment to the constitution was in effect, and the relator, Riordan, claims the right to retain the office thereunder, while the defendants contend, among other things, that the office of Jury Commissioner is not within the provisions of the state civil service amendment, which is concerned with:

“Appointments and employments in and promotions to offices and places of trust and employment in the classified civil service of the state.”

The coürt held, in People ex rel. v. Higgins, 67 Colo. 441, 184 Pac. 365, that the amendment applied only to officers and employees of the state, the word “state” being used in the sense of employer, or the entity for whom the service is performed, rather than as a territorial limitation. Unless, therefore, the Jury Commissioner is a state officer it necessarily follows that he is not subject to the provisions of the state civil service amendment and the laws enacted to put it into effect.

Moreover, the state civil service amendment expressly exempts from its operation, among others, “persons appointed to perform judicial functions.” The Jury Commissioner is authorized to administer oaths, to summon before him prospective jurors, to examine them as to their qualifications, to pass upon their qualifications and return a list of selected jurors to the court. Every power over this subject, which up to the beginning of the trial has heretofore been exercised by the judges of courts of record, has by this act been delegated to the Jury Commissioner. Custom, law or precedent may have stamped these as ministerial functions in other jursdictions, but plainly in Colorado they have been regarded and treated in the past as, and for the purposes of this case must be held to be, “judicial functions,” which fact, by the express provisions of the amendment, exempts this office and this officer therefrom.

One who is “an officer of the court,” as distinguished from a “state officer” is not within the terms of the amendment. People ex rel. Clifford v. Morley, 67 Colo. 331, 184 . The act itself having designated the Jury Commissioner as an officer of the courts of the county, he is, under this holding, expressly excluded from the operation of the amendment.

State officers are those whose duties concern the state at large, or the general public, although they may be exercised within defined limits. 36 Cyc. 852. Plainly, unless the Jury Commissioner is a state officer he is not subject, under our own decision, to the state civil service amendment. The Jury Commissioners Act expressly provides that such Commissioners “shall be officers of the several courts of record of their respective counties.” Their duties, which are thus confined within local limits, do not “concern the whole state” any more than the duties of every other public officer of every grade concern the whole state. If Jury Commissioners are state officers, then every other public officer of whatever grade is also a state officer. Public officers usually belong to one of these three classes, state, county or municipal; but this classification does not include all officers. Thus it was held in the Speakership Case, 15 Colo. 520, 25 Pac. 707, 11 L. R. A. 241, that the Speaker of the House of Representatives is not a state officer. He certainly is' not a county or municipal officer. It is not necessary to hold a Jury Commissioner to be a county officer if he is found not to be a state officer, or a state officer if he is found to be neither a county officer nor a municipal officer. This is precisely the situation in which this court evidently found a bailiff of the district court, for in People v. Morley, supra, we held that bailiffs are officers of the court, but not state officers. This decision seems not only applicable here, but absolutely decisive and controlling.

Practically all the decisions on the subject sustain the proposition that a Jury Commissioner is not a state officer. Several cases hold that he is a county officer. 15 C. J. note 36. Other cases regard him as being neither a state nor a county officer, but as belonging to a separate and distinct class, strictly an officer of the court. In State v. Mounts, 36 W. Va. 179, 14 S. E. 407, 15 L. R. A. 243, it was expressly held that he is not a state officer, in the following language:

“The question here presented is, whether the jury commissioners * * * are officers of the state, or whether they are in fact, like jurors themselves, mere officers of the court, such as commissioners in chancery, and, in a general sense, attorneys. We think there can be no doubt that such commissioners belong to the latter class, and go to make up a part of the judicial machinery, such as commissioners in chancery, general and special receivers, and other similar officers. Jurors are themselves, in a certain sense, officers of the court; and this special commission, (Jury Commissioner) is only a legislative device intended to aid the court in selecting them.”

The foregoing was approvingly quoted in State v. Kendle, 52 Ohio St. 346, 39 N. E. 947, where the court also said:

“They (the Jury Commissioners,) are appointed by the common pleas judges to assist in the administration of justice, as are master commissioners and court constables. They are but handmaids of the court in the selection of judicious and discreet persons to serve on such juries as are required in the trial of causes, and the presentment of indictments.”

Concluding, as we do, that the Jury Commissioner is not a state officer, and that he is “an officer of the court,” it necessarily follows from our holding in People ex rel Clifford v. Morley, supra, and in People ex rel. v. Higgins, supra, that he is not within the civil service laws of the state, unless both of these decisions be flatly overruled.

The demurrer of defendants to the alternative writ of mandamus is sustained, and the proceedings dismissed.

Mr. Justice Scott, Mr. Justice Teller and Mr. Justice Denison dissent.