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or removal from office, the Governor shall and duty of the Governor under the provifill the same until the next session of the sion of the Constitution, when such a vaLegislature, when the Senate may confirm cancy occurs in the office, to "appoint some or reject the appointments so made." This fit person to discharge the duties thereof clause, though in form an exception, is not until the next meeting of the Senate, when one, but is an independent clause. Anything he shall nominate some fit person to fill that is embraced in an exception must be such office." It cannot be said that he may included in that from which it is excepted. do this if the intervening time is long, but The appointments mentioned in the sentence that he may not do it if it is short. Take preceding the apparent exception are the the provision of this statute, that the Govenoriginal appointments for the term, and do or may fill a vacancy through death, until not include the appointments referred to in the next session of the Legislature. If one the apparent exception, which are appoint- of the Judges should die 18 months before ments after a previous incumbency, and the the Legislature meets, the Governor can occurring of a vacancy through the designat- fill the vacancy until the meeting, and he ed causes. The appointments to be made can equally as well fill the vacancy if the after the occurrence of vacancies happening death occurs but a week before the Legislafrom the designated causes are to be made ture is to meet. Now, in the present inuntil the next session of the Legislature, stance, when the act went into effect, there when the Senate may confirm or reject them. were vacancies in the offices of the Judges The language leaves some doubt there. The of the Court of Appeals, occurring in a reappointment is to be made for a limited cess of the Senate, and it was provided in time. In case the Senate confirms it, it may be that the statute may be helped by implication, and it may be said that the limited appointment is converted, by the confirmation, into one to fill the vacancy and it is filled. But what is to be done if the Senate rejects this limited appointment? There is only one appointment to be submitted, one made some time before. How is the vacancy to be filled if the Senate rejects this appointment? It must be admitted that the statute thus far is not clear even as to the filling of vacancies from the designated causes. The last clause of the section clarifies the situation. It provides that, "Vacancies shall be filled in the same manner as the regular appointments are required to be made." The filling of vacancies referred to here is unqualified and unlimited in any manner. Applying here the rule announced in Monash v. Rhodes, supra, it undoubtedly means the permanent filling of vacancies for the unexpired term. This becomes certain when we consider that under this provision of the statute the vacancies are to be filled by the Governor, with the advice and consent of the Senate. Who would say that under such a provision the Governor may submit to the Senate an appointment for only a part of the unexpired term? The proposition would involve an absurdity. If a vacancy occur when the Senate is in session, the Governor the Senate in extraordinary session, submitis at once able to fill it as the act provides; ted to it his appointments and had them but if the Senate is in recess and the vacan- confirmed; whereupon, the offices would have ey happens, the Governor is unable to fill it been filled. Were this true, the conclusion when it takes place. In any event, time of reached would be the same, for of necessity longer or shorter duration must expire be- a period must elapse between the time the tween the happening of a vacancy in recess vacancies occurred and the meeting of the and the meeting of the Senate when the Senate, during which period the constitutionGovernor may fill it. As to the filling of the al provision would be operative, and the vacancy, or the appointment of a fit person facts are that the respondents were apto perform the duties of the office during this pointed during that period and the Senate intervening time, the statute is absolutely has not met. The confirmation of the apsilent. This being so, under the decision of pointments, whether original or to fill va

the statute that those vacancies were to be filled by appointment by the Governor, with the advice and consent of the Senate. The Governor was unable to fill these vacancies as the statute provides, and would be unable to do so until the next meeting of the Senate. The statute not providing for the filling of these vacancies or the appointment of suitable persons to perform the duties thereof during the time intervening between the occurring of the vacancies and the meeting of the Senate, the Governor exercised his constitutional right in such a case to appoint the respondents as fit persons to discharge the duties of these offices until the next meeting of the Senate. The respondents entered upon the discharge of said duties and ever since have been and now are discharging them, and the Senate has not been in session since their appointment. They undoubtedly entered lawfully upon the discharge of those duties, and, under the facts present, there is no power or authority existing anywhere to oust them from the positions they now occupy until the happening of the event that will enable the Governor to fill the vacancies existing in these offices.

The relators contend that, under the provisions of section 9 of article 4 of the Constitution, the Governor could have called

Senate, was not within the contemplation | ate. It is contended that the first or initial of the act or the General Assembly that appointment of persons to discharge the dupassed it, for the following reasons: ties of the offices must receive the sanction

(1) Because the calling of an extraordinary of the Senate before such persons are qualisession of the Senate is within the discretion of the Governor. Many things might combine to shape the exercise of that discretion. After due consideration, the Governor might conclude that it would be unwise to call such a session, in which event a period of at least 15 months would pass before any appointments would be made and before such vacancies as occurred could be filled. Such a session was an event too uncertain for reasonable men to select as a beginning for the work of a court which they had created and which, as is shown by language and provisions of the act itself, they desired to go into immediate operation, and, as seen from the Rucker Case, as early as the adjournment of the General Assembly then in session.

(2) Because the act itself indicates that the confirmations mentioned therein were intended to be made at regular sessions of the Senate, for the act, at the only place designating the sessions specifically at which confirmations were to be made, says they shall be made at the next session of the Legislature, and then the Senate would be in regular session.

(3) Because (and this reason is sufficient in itself) according to the Rucker Case, the original appointments for the term had to be made during the session of the General Assembly which passed the act, or not at all, and that was declared by this court in that case, notwithstanding that the constitutional provision for the calling of an extraordinary session of the Senate existed then as now. The act under consideration in the Rucker Case had the same provisions for the making of the original appointments for the term

as the act under consideration here. With the same provisions in this act, with reference to the appointments, and the same constitutional provision for the calling of an extra session, this court must now overturn the Rucker decision, unless it be concluded that the last General Assembly did not have in contemplation the calling of such a session. If we would be right now in saying that it did, this court was wrong in the Rucker Case in ignoring such a session, and in saying that the right of the Governor to make the appointments ceased with the adjournment of the assembly. We must presume that the General Assembly knew the law, as declared in the Rucker Case; that they intended to follow it, and, knowing it and so intending, they could not have had in contemplation an extraordinary session of the Senate.

It is plain from the act that no person can be appointed a judge of the new court for the term or for an unexpired portion thereof without the confirmation of the Sen

fied to act. This contention finds no support in the act, or the Constitution, or the decisions of this court, or at all. There is no language in the act that can be reasonably construed as supporting it. It must now be apparent from the preceding discussion that to uphold such a contention we must overrule the Rucker Case and hold that no vacancies existed, forget the provisions of the act for filling vacancies, overrule the case of People v. Osborne, ignore the constitutional provision for ad interim appointments, and place the General Assembly in the unreasonable and absurd position of creating a court and the offices of five judges for the immediate relief of a congested condition of this Supreme Court; providing that the new court and the five offices shall come into being when the act takes effect; at the same time depriving this court of jurisdiction of about one-half of the cases pending before it, and transferring them to the new court; making the life of this new court, that was to dispose of these many cases and many more to be sent to it, only four years, and at the same time and in the same act, with deliberate intent, making provisions which they must have known would prevent any work by this newly created court for a period of at least 15 months, and which for the same period would keep the court, offices, relief intended, cases over which jurisdiction has been taken away and conferred on the new court, suspended in mid-air. We shrink from undertaking the enormous task of supporting such a contention, and content ourselves with upholding and abiding by the act, the Constitution of this state, and the former deci

sions of this court.

The provisions that the court and the offices were to exist and this court deprived of jurisdiction in such a large number of cases, when the act took effect, the use of the word "immediately" in the act, with reference to the doing of certain things, indicate that it was the intention of the Legislature that the new court was to go into immediate operation. The growth of litigation in this state has kept pace with the wonderful growth in population, wealth, and diversity of industries. From territorial days down to the present time, notwithstanding diligent and earnest endeavor, and notwithstanding that the Legislature has attempted to afford relief from time to time, the number of cases on this docket, in excess of those disposed of, has steadily increased. The abolition of the former Court of Appeals, in 1905, placed upon the docket of this court, already heavily overladen, about 600 additional cases. The new cases coming to this court have steadily increased. As a result of all this, the docket of this

Both questions presented having been answered in the affirmative, the petition must be dismissed and judgment go for respondents, and it is so ordered.

CAMPBELL, C. J., not participating.

GABBERT, J., sustaining the constitutionality of the act, and dissenting from the conclusion that the appointment of respondents is valid, delivered the following opinion:

I fully concur in the conclusion that the act is constitutional, but, in view of the importance of the questions urged upon our attention by counsel for relators against its constitutionality, I have concluded to express my views on that subject. It is entitled "An act in relation to courts of review," and its provisions, the constitutionality of which are challenged, or which relate to that question, are as follows:

"Section 1. That there be and is hereby established a court to be known as the 'Court of Appeals,' which shall exist for a period of four years from the date upon which this act shall take effect and shall exercise only such jurisdiction as is hereinafter conferred upon it.

court was congested to such an extent that would result in their defeat. This result the delay incident to such a condition was being thus strongly fortified, no other con regarded and felt by many to be a denial clusion can, by any sound process of reaof the right, guaranteed by our Constitution, soning, find support. to a remedy for every legal injury, and to enjoy that remedy without delay. It was to relieve this serious condition and to afford that speedy determination of causes assured by the Constitution that the new court was established. The relator bar association, and like associations throughout the state, had, for some time, been discussing the question of securing relief from the serious situation with which parties to litigation were confronted with respect to review, and had themselves suggested the new court as a means of relieving that situation. During the oral argument, it was said by the president of the relator bar association that the object of this action was to set at rest some doubt that had existed in the minds of some of the profession relative to the legality of the new court, and of the appointments made by the Governor, so that the new court and these respondents, if their appointments were found to be legal, might at once proceed in the performance of their duties, with the confidence of litigants in their legality, or if either the court or the appointments should be found illegal, that then some other steps might be taken at once looking towards the desired relief. So that beyond question the paramount object of this act was to relieve this serious situation, and to immediately begin the work of such relief. Thus, the conclusion we have reached is in harmony with the paramount objects| and purposes of this act, and enables them to be carried out. That this affords further support to our conclusion is settled by decisions of this court. In Carlisle v. Pullman Co., 8 Colo. 320, 327, 7 Pac. 164, 168 (54 Am. Rep. 553), it is said: "Chief among the considerations to be weighed in the construction of a statute are the objects to be accomplished, the evils to be remedied, and the circumstances under which it was enacted." And in Murray v. Hobson, 10 Colo. 66, 73, 13 Pac. 921, 924: "Among other wellestablished rules of construction are these: That statutes are to be construed with reference to the objects to be accomplished by them, and with reference to the circumstanc-missal of said pending appeals or of appeals es existing at the time of their passage, and the necessity for their enactment." And in Ellet v. Campbell, 18 Colo. 510, 518, 33 Pac. 321, 524: “In resolving this question, as in other cases of like nature, the meaning and application of the statute is to be ascertained by considering its origin, its history, its purposes and objects, as well as its subject-matter and the language employed."

Having considered the act in the light of the previous decisions of this court and the Constitution, and concluding that the respondents are entitled to remain where they are, its paramount objects and purposes are

"Sec. 3. Said Court of Appeals shall have jurisdiction to review and determine all judgments in civil causes now pending upon the docket of the Supreme Court, or wherein appeals were perfected prior to the taking effect of this act or that may hereafter and during the life of the Court of Appeals be taken to the Supreme Court for review, save and except writs of error to county courts.

"Sec. 4. The statutes granting and regulating appeals from the district and county courts to the Supreme Court shall be, and the same are hereby repealed and the jurisdiction of the Supreme Court on appeal even as to causes already pending therein shall, save as in section 6 hereinafter provided, terminate upon the taking effect of this act, except for the purpose of entering the order of transfer hereinafter provided for. Such repeal, however, shall not operate as a dis

perfected but not yet docketed; all such appeals shall, immediately upon organization of the Court of Appeals or thereafter and upon the docketing thereof, be transferred by order of the Supreme Court to its docket for hearing and determination. And the decision of the Court of Appeals in all such cases shall, except as to those specified in said section 6, be final and conclusive. This provision shall apply also to special proceedings wherein appeals to the Supreme Court are now allowed by law; but in all such cases the remedy by writ of error is hereby substituted for the remedy by appeal. Superse

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Session Laws 1911, p. 266 et seq.

error hereafter taken to review ordinary ac- with the same effect as the Supreme Court. tions at law, or in equity or special proceed- | * ings, shall be conditioned as now provided by statute in such cases.

In support of the contention of counsel for relators, that the act is unconstitutional, it is "Sec. 5. The Supreme Court is also hereby urged that it is in conflict with our fundaauthorized to transfer to said Court of Ap- mental law, because it purports to take from peals for hearing and determination, by suit- the Supreme Court a part of its final appelable orders in the premises, such other civil late jurisdiction, vested in it by the Consticauses now or hereafter and during the life tution, and bestow it upon the Court of Apof said last mentioned court, pending before peals; because it purports to deprive the Suthe Supreme Court on error, as it may deem preme Court and litigants therein of the use advisable, omitting, however, writs of error of the writ of error or its equivalent as a to county courts. And immediately upon writ of right running to all judgments of such assignment and transfer of causes so courts of record in this state contrary to the pending on error, the clerk of the Court whole theory of the Constitution and the of Appeals shall, by registered mail, nofify common-law principles and rules giving the the parties to each of said causes or their writ of error as a writ of review and a writ attorneys of record, of such transfer, and of right; because by its terms it is made advise them that unless within thirty days to operate retroactively, in terminating the from the date of said notice a petition be jurisdiction of the Supreme Court already filed requesting that the same be remanded in exercise, and attempts to confer jurisdicto the Supreme Court, a waiver by consent will be conclusively presumed of the right or privilege, if any such right or privilege exists, to a hearing and determination of the writ of error by the Supreme Court. And if either of the parties or his attorneys, to a cause thus removed, shall, within the time above specified, file such petition to remand, the same shall be at once returned to the Supreme Court docket for final consideration and decision. But in all cases pending on error thus transferred, wherein no such petition be filed within the 30 days mentioned in the notice, the decision of the Court of Appeals shall, with the exceptions specified in section 6 of this act, be final and conclusive.

"Sec. 6. Provided, however, that in causes thus transferred from the Supreme Court to the Court of Appeals, whether pending on appeal or error, wherein the decision necessarily involves the construction of a provision of the federal or state constitution, or relates to a franchise or freehold, or a judgment for more than $5,000, exclusive of costs, such decision thereof by the Court of Appeals shall not be final. Such cases may be reheard in the Supreme Court by writ of error from the latter court, under rules to be adopted by it. Or if, before a hearing in any case, either party thereto shall advise the Court of Appeals that it belongs to one of the classes of cases in this section above specified, and the court shall upon investigation so find, it shall at once and without further proceedings remand the same to the Supreme Court for determination.

"Sec. 7. The Court of Appeals shall have the power to adopt rules regulating the procedure therein in the same manner and with like effect as the Supreme Court; provided that such procedure shall be, so far as practicable, similar to that of the Supreme Court. It shall be a court of record and have a seal and shall also have power to issue all necessary and proper writs and processes in aid of its jurisdiction, in the same manner and

tion on the Court of Appeals in certain cases by consent or waiver of the litigants; and, finally, that it does not comply and is in conflict with section 21, art. 5 of our Constitution, which requires that no bill, except general appropriation bills, shall be passed containing more than one subject, which shall be clearly expressed in its title.

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By the Constitution, "the judicial power of the state as to matters of law and equity, except as in the Constitution otherwise provided, shall be vested in a Supreme Court, district courts, county courts, justices of the peace and such other courts as may be provided by law."

"The Supreme Court, except as otherwise provided, in this Constitution, shall have appellate jurisdiction only, which shall be coextensive with the state, and shall have a general superintending control over all inferior courts under such regulations and limitations as may be prescribed by law."

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From these provisions, it appears that the General Assembly is clothed with power to create other courts than those therein designated, and may therefore create an intermediate court of review. People v. Richmond, 16 Colo. 274, 279, 26 Pac. 929. It is patent from the constitutional provisions quoted that the Supreme Court is placed at the head of the judicial system of the state, and any act of the Legislature purporting to interfere with its existence, supremacy, or the nature of its jurisdiction or duties, would, to that extent, be invalid; conse quently, a court of co-ordinate final juris

diction cannot be established by statute, for | purport to make the Court of Appeals a every tribunal thus created, as well as those named in the Constitution, must be inferior to the Supreme Court, subject to its superintending control, and governed by its decisions. People v. Richmond, supra, 16 Colo. 279, 26 Pac. 929.

court superior to, or of co-ordinate jurisdiction with, the Supreme Court? I think this question must be answered in the negative. Its jurisdiction is limited to the cases which the Supreme Court is required to, or may, transfer to it. It is not vested with any The act in question creates the Court of superintending control over inferior tribuAppeals for a specific purpose, of which we nals, nor with any original jurisdiction, take judicial notice, namely, to relieve the whatever; neither it is authorized to answer docket of the Supreme Court. To this end it executive or legislative questions; and, improvides that the Court of Appeals shall have pliedly, it is not authorized to consider any jurisdiction, under certain restrictions, to re- causes brought to the Supreme Court from view and determine all causes pending in the county courts on error. No attempt is the Supreme Court at the time the act takes made to interfere with the jurisdiction and effect, save and except writs of error to authority of the Supreme Court to hear and county courts. The jurisdiction of the Su- determine all cases brought to it on error preme Court to determine cases on appeal, from other inferior tribunals of record subupon the act taking effect, is terminated, and sequent to the organization of the Court of thereafter causes can only be taken to this Appeals, although cases then pending on ertribunal on error. All appeals pending in ror or brought to it by that procedure therethe Supreme Court immediately upon the after may be transferred to the Court of Aporganization of the Court of Appeals shall peals, except those on error to county courts. be transferred to it for hearing and deter- In fact, from that date, it is vested with aumination. The Supreme Court is also authority to hear and determine all cases then thorized to transfer to the Court of Appeals, pending or brought to it on for hearing and determination, such causes pending or brought to the Supreme Court on error as it may deem advisable, omitting, however, writs of error to county courts. When causes pending on error authorized to be transferred to the Court of Appeals reach that tribunal, notice shall be given to the parties, or their attorneys of record, of the transfer, advising them that unless, within 30 days of the date of such notice, a request is made to remand to the Supreme Court, a waiver by consent will be conclusively presumed of the right or privilege of a hearing and determination by the Supreme Court. If a request to remand is made, the cause shall at once be remanded to the Supreme Court. The judgment of the Court of Appeals in all cases which, by virtue of the foregoing provisions it is authorized to hear and determine, shall be final and conclusive, save and except cases where a decision necessarily involves the construction of constitutional provisions, either state or federal, or involves a franchise or freehold, or where the judgment reviewed is for more than the sum of $5,000, exclusive of costs. The Court of Appeals is made a court of record; is authorized to adopt rules regulating the procedure therein, with the same effect as the Supreme Court, and is empowered to issue all necessary and proper writs and processes in aid of its jurisdiction. These, in brief, are the salient features of the act creating the Court of Appeals, defining its jurisdiction and authority.

error from all inferior courts of record, excepting the Court of Appeals, without regard to the amount of the judgment or questions involved. It is only obligatory on the Supreme Court to transfer causes therein pending on appeal at the time the Court of Appeals was organized. That tribunal is authorized to issue writs, but they are in no sense any of the original or remedial writs which the Supreme Court, by the Constitution, is alone empowered to issue. On the contrary, the only writs the Court of Appeals can issue are those which will enable it to enforce and exercise its jurisdiction over those cases transferred to it by the Supreme Court. Causes transferred as pending on appeal, the decision of which necessarily requires a construction of a provision of the federal or state Constitution or involves a franchise or a freehold, or where the judgment, exclusive of costs, exceeds $5,000, may be reviewed on error by the Supreme Court; or if before a hearing in the Court of Appeals, either party advises it that a case involves a decision on either of these questions, and the court so determines, it shall at once remand the case to the Supreme Court for determination. Causes transferred as pending on error may also be remanded if application to that end is made in apt time. It thus appears that in no respect is the Court of Appeals, by the statute creating it, made a court of coordinate or superior jurisdiction to the Supreme Court; that it is not vested with any authority or powers conferred upon the The main question, therefore, presented for Supreme Court alone by the organic law of determination on the subject of the consti- the state, unless it be that the Constitution tutionality of the act, except the one relating inhibits an intermediate court of review to its title, is whether it purports to deprive whose judgment shall be final a proposithis court of its constitutional authority, or tion I shall consider later; that in specific litigants of their constitutional rights. cases its judgments may be reviewed by the

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