IN RE POWER OF GOVERNOR TO REMOVE APPOIN TIVE OFFICERS OF THE STATE OF COL- The Governor has power to remove officers who hold their position under appointment, for incompetency, neglect of duty, or malfeasance in office. State of Colorado, Attorney General's Office. Denver, Colorado, February 3, 1900. HON. CHARLES S. THOMAS, Governor of the State of Colorado, Dear Sir:-With reference to the matter of the removal of the Coal Mine Inspector, called to my attention this morning, I have given it as careful an examination as possible within the short time for considering the same, and the result of my conclusion I give below. I quote from the Session Laws of 1885, as follows: "And from the names that may be certified by them the Governor shall appoint the Inspector of Mines, provided for in this act. * * * As often as vacancies in said office of said Inspector of Mines shall occur by death, resignation or malfeasance in office, which shall be determined in the same manner as in the case of any other officer of the state government." Session Laws of 1885, page 142. This statute does not fix the term of office in so many words, but another statute passed by the same General Assembly provides that the term of office of the state officers thereafter appointed by the Gover nor, except those whose terms of office are otherwise fixed by the law, shall commence on the first Wednesday of April next after their appointment, and shall continue for a term of two years, subject to the right of the Governor at any time to remove such incumbent for incompetency, neglect of duty or malfeasance in office. Session Laws of 1885, page 330. In the case of Trimble vs. The People, 19 Colo., 198, it was held that, under the statute, the cause that may be sufficient to warrant removal is to be determined by the Governor. No mode of inquiry being prescribed, he is at liberty to adopt such mode as to him shall seem proper, without interference upon the part of the courts. The Governor was not bound to examine witnesses under oath, or otherwise, although it was eminently proper that he should do so. might have resorted to other means for ascertaining whether a cause for removal existed, and the refusal to allow counsel to be heard is not a fatal objection to the Governor's action, as he might have proceeded ex parte. A number of decisions are cited in the opinion in the above case. See, also, People vs. Wilcox ex rel., 20 Ill., 187. He When a party accepts appointment under the statute above referred to from the hand of the Governor in this state, the conditions of such appointment are that it is subject to the right of the Governor at any time to remove such incumbent for incompetency, neglect of duty or malfeasance in office. It appears that the Governor, in the absence of any form having been prescribed by statute to the contrary, may adopt any method he sees fit to determine a question of incompetency, neglect of duty or malfeasance in office by one of his appointees. Yours respectfully, DAVID M. CAMPBELL, IN RE COUNTY HIGH SCHOOL STATUTE. In the act of 1899, authorizing counties of the fourth and fifth classes to establish county high schools, the words "as classified by law with reference to the salaries of district attorneys and county officers" make the act applicable to counties which may be found in those classes at the time when such counties seek to avail themselves of the provisions of the act. State of Colorado, Attorney General's Office. Denver, Colorado, February 10, 1900. HON. HELEN L. GRENFELL, State Superintendent of Public Instruction, Dear Madam:-I am in receipt of your letter of recent date, in which you request an opinion as to the proper construction of the language of section 1 of an act to provide for the establishment and support of high schools in counties of the fourth and fifth classes, and especially of the words "any county of the fourth or fifth class as classified by law with reference to the salaries of district attorneys and county officers." In reply thereto I have the honor to state as follows: The act referred to will be found at page 226 of the Session Laws of 1899. It went into effect on July 7, 1899. In 1891 the legislature passed an act dividing the counties of the state into five classes, for the purpose of providing for and regulating the compensation of county and other officers. (Session Laws of 1891, page 307.) In 1899 the act of 1891 was amended. The county of Fremont was removed from the fourth class to the third class, and the county of Larimer was removed from the third class to the fourth class. (Session Laws of 1899, page 331.) By section 14 of the same act an entirely independent classification, dividing the counties into seven classes, was made, for the purpose of regulating the amount of compensation of county superintendents of schools. (Session Laws of 1899, page 337, section 14.) This act went into effect July 10, 1899. The question submitted by your letter for determination is, which one of these three classifications was referred to by the legislature in the statute under consideration? The language of the act, so far as the same is relevant to the present purpose, is as follows: "At any general election subsequent to the passage of this act, the question of organizing any county of the fourth or fifth class as classified by law with reference to the salaries of district attorneys and county officers into one school district for high school purposes shall be submitted It will be noted that the act of 1891 was still in force when the act under consideration went into effect, July 7, 1899. It will also be noted that, strictly speaking, there is no statute which classifies the counties with reference to the salaries of district attorneys. Manifestly the legislature did not refer to the classification made by section 14 of the act of 1899, for the reason that that is not a classification for the purpose of fixing the salaries of county officers, but only of one county officer, namely, that of county superintendent of schools. The question to be determined is, therefore, whether the legislature referred to the classification of counties in force at the time of the passage of the act or to any classification of counties which might thereafter be made with reference to the salaries of county officers. The only language in said act which refers to or fixes any time is found in the opening sentence: “At any general election subsequent to the passage of this act." The general rule is that where the legislature in passing an act uses the broad term "as provided by law," or any similar terms, it will be held to mean the law upon the subject which may be in force at the time when the provisions of such act are to be put into effect, and not the particular provisions of law which were in force at the time of the passage of the act. This construction will prevail unless something can be found in the act itself which indicates a different intent on the part of the legislature. Kugler's Appeal, 55 Pa. St., 123, 125. Harris et al. vs. White, 81 N. Y., 532, 545. 283. Under this rule the words, "as classified by law," found in the act under consideration, I think clearly indicate that the counties authorized to take advantage of the act are those which may be found in the fourth and fifth classes as classified with reference to county officers at the time when such counties seek to take advantage of the provisions of the act, and not those which were in the fourth and fifth classes at the time when the act went into effect. If the latter had been the intention of the legislature, such intention could readily have been made manifest by the use of apt words for that purpose. As the law now stands, all the counties in the state come within its provisions with the exception of Arapahoe, El Paso, Pueblo, Boulder, Fremont, Lake, Pitkin, Las Animas and Weld. Very truly yours, D. M. CAMPBELL, Attorney General. By DAN B. CAREY, Assistant. |