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drawn. Upon final hearing the relator offered in evidence, by consent of parties, the record of proceedings of the board of trustees at the various alleged meetings when the charges had been preferred and considered, and when the removal had been ordered, and a successor elected. Respondent offered no evidence. After argument the court awarded a peremptory writ directing the restoration of the relator to his office. The respondent brings the case here on error for review. The first question raised is as to the sufficiency of the alternative writ. It is urged that the writ fails to state a cause of action. It is settled in this state that an alternative writ performs the office of a complaint in an ordinary civil action, and that it must state a cause of action, and, in case of failure to do so, it will not support a judgment. Wheeler v. Irrigating Co., 10 Colo. 582, 17 Pac. 488. The writ in this instance was not attacked by demurrer, but it is equally well settled that without this the question of the sufficiency of the writ to state a cause of action may be raised and considered on appeal or error. Nance v. People, 25 Colo. 252, 54 Pac. 631. The objection of respondent, however, is, in our judgment, not well taken. The writ states a cause of action. It sets forth the election and qualification of the relator, his entry upon the duties of his office, and his continuing to exercise the functions and perform the duties thereof from April 9, 1897, to June 1, 1897, at which tinie it sets forth that the respondent illegally, wrongfully, and without warrant of law pretended to remove and oust him from his office, and has ever since unlawfully, wrongfully, and against his rights and privileges, etc., refused, and still refuses, to recognize him as mayor, or permit him to perform the functions and duties of his office, notwithstanding he has been at all times willing and qualified so to do. All that he could allege was the unlawful removal and refusal to acknowledge him. It was not incumbent upon him in the petition, nor was it necessary in the writ, to set forth why and wherefore the board of trustees attempted to remove him. These were purely matters of defense, and it was for respondent to set them forth in its answer or return to the writ, as it did. Moreover, it is held that the rules of pleading in civil actions prescribed by the Code are applicable to proceedings in mandamus, except in cases where a different or special rule is provided by the Code or statute. People v. Lothrop, 3 Colo. 429; Nance v. People, supra. If there was any defect, therefore, in the writ in this respect, it was aided, and the defect supplied, by the allegations of the answer. We are cited by counsel to section 546, High, Extr. Rem., wherein it is claimed the rule is laid down that the sufficiency of a writ is to be determined solely from its own contents, and any defects which may be apparent therein cannot be supplied by the return. Without stopping to discuss the ques

tion as to wherein this rule is qualified or relaxed by reason of the provisions of our Code, it is sufficient to say that under the decisions of our supreme court-two of which we have cited above-the rule referred to does not prevail in this jurisdiction.

Re

Upon the filing of the answer or return to the writ, the relator replied. This was attacked for insufficiency, and thereupon an amended reply was filed by leave of the court. In this the relator denied that he was summoned to appear before the board of trustees to answer the pretended charges; admitted that a special meeting of the board was pretended to be held on the day alleged, but denied that said meeting had been duly or regularly called; denied that he appeared in person; denied that at a subsequent meeting of the board, when final action was alleged to have been taken upon the charges, he appeared in person or by his attorney; denied that after hearing the evidence, or any evidence, the board found that each or any of the pretended charges were sustained, or that the office of mayor was declared vacant; denied that any vacancy did exist in the office of mayor. Respondent insists that by filing a reply the relator admitted the legal sufficiency of the return as a complete answer to the alternative writ, and that hence it was entitled to judgment on the pleadings; a motion to which effect was made, but overruled. spondent further contends that the' reply did not put in issue any of the material facts alleged in the return. To this contention we cannot agree, although, in the view which we take of the case, it is not necessary to enter into a discussion as to what constituted the material facts alleged in the return and what were denied by the reply. We will only say that the effort of counsel to sustain his position by extended reference to the first reply filed cannot avail them. The amended reply filed by leave of the court became substituted for the original, and its statements alone could be considered in a determination of this question upon the pleadings. We prefer to direct our attention to the broad ground assumed by counsel, that by failing to demur to the answer, and by pleading to the return, the relator admitted that the facts which it presented constituted upon their face a sufficient answer to the alternative writ, and that in this instance respondent was entitled to judgment thereon. Whatever may be the rule as to the method of pleading, we do not think that upon reason, principle, or authority it can go to the extent of absolutely binding the court, and precluding it from rendering judgment in favor of the relator, where it appears that the matters set up in the answer or return furnish no legal justification for the acts of respondent. A rule of this kind would lead to incalculable mischief and confusion. If the relator failed to attack the sufficiency of the answer, and elected to reply to some of its allegations, the truth of which might be questionable, this act of itself would fix and

determine the judgment of the court. The court itself, upon this theory, would be absolutely precluded from rendering a judgment in favor of relator, although it might appear that the allegations of the answer showed upon their face that the respondent was guilty of an unwarranted usurpation of power and authority, and that its acts were without any authority or justification in law. Such a result would be contrary to every rule and principle of reason and law. As we have before said, however, the rules of pleading in civil actions prevail in mandamus in this jurisdiction, except where it is otherwise specially provided. There is no special provision sustaining the contention of respondent, and the ordinary rules of pleading in civil actions do not. Therefore it is conclusive to our minds that the rule contended for does not prevail here, however it may have existed under the old form of procedure and in that of other jurisdictions where different code and statutory laws prevail. We think the true rule is, under our procedure, that the return or answer to the writ of mandamus must show a full and complete legal defense to the acts complained of, where the writ or complaint is sufficient, before the trial court can be precluded from rendering judgment in favor of the relator, if such judgment be proper in the premises upon the facts disclosed, even though a reply should be filed.

feasance in office in such manner as may be
provided by law. Whether this language is
exclusive, and would preclude a legislative
enactment specifying other grounds of remov-
al, does not arise in this case. The statute
does not enumerate other causes of removal,
nor, in fact, any. Clearly, therefore, it would
seem that the only grounds of removal of a
duly elected and qualified mayor would be
those specified in the constitution. Such an
officer being neither elected nor appointed by
the board of trustees, it would have no inher-
ent power to remove him. It could have, in
this respect, such power only as granted to it
by law, statute or constitutional. These
views accord, in principle at least, with those
announced by our supreme court. In re
Speakership, 15 Colo. 520, 25 Pac. 707, 11 L.
R. A. 241; Trimble v. People, 19 Colo. 187,
34 Pac. 981. Surely, the contention cannot
be supported by either law or reason that the
lawfully elected incumbent of a municipal of-
fice provided for by statute, elected by the
voters of the town, can be removed by the
board of trustees at its arbitrary will and
pleasure. If so, the election by the people
might as well be dispensed with as a useless
procedure, and the board be invested with su-
preme authority.

There were no findings by the court in this instance, and we are therefore left in the dark as to what grounds the court relied This brings us to a consideration of the ef- upon in granting the peremptory writ. Testfect and sufficiency of the charges preferred ed, however, by what we have just said as against the relator, and for which he was re- to causes to justify removal, none of the moved. It is provided by statute that the charges preferred in this instance were suffimayor, the recorder, or any member of the cient. As to the matters set forth in the first board of trustees in an incorporated town, and second specifications, they were within or any officer of the corporation, may be rethe exclusive control of the respondent, whatmoved from office by a concurrent vote of ever may have been the ruling of the mayor four members of the board. Gen. St. § 3390. in reference thereto. The board of trustees It is nowhere provided for what cause a re- is exclusively the judge of the qualifications moval may be made. Under our theory of of its own members, and the ruling of the government, where the voice of the people is mayor in reference thereto could not affect the supreme law, and where that voice, ex- the situation. An appeal would also lie from pressed through the qualified electors of the any ruling or decision of the mayor; and, by state, county, city, or town, controls, it needs the way, it does not appear that this action no argument to show that the holder of an was had in this instance. The clerk and the elective office, duly elected by the people, records were under the exclusive control of where the statute is silent, as in this instance, the board, and it had at all times power to as to the causes of a removal, should not be see that its action was properly entered up removed except for official misconduct,-such in the minutes, regardless of any ruling of misconduct as affects the performance of his the presiding officer. If these charges were duties as an officer,-and for offenses against sufficient, even if fully proved, to sustain the corporation of a character directly affect- the amotion of the mayor, then such action ing its rights and interests. This conclusion could be had upon an exceedingly flimsy is, we think, clearly sustainable on constitu- pretext. Instead of a question of law being tional grounds. Section 1, art. 12, of the con- involved, it would be a question of parliastitution recognizes the mayor of a municipal mentary procedure, about which there might corporation as an officer who is entitled, “un- be a wide divergence of opinion, and conless removed according to law, to exercise the cerning which the statutes provide no rules duties of his office until his successor is duly for its determination. The fourth specificaqualified." Londoner v. People, 15 Colo. 568, tion is an attempt to bring the charge within 26 Pac. 135. Section 3, art. 13, provides that the provisions of section 3 of the corrupt officers not subject to impeachment (and mu- practices act (Laws 1891, p. 168). This denicipal officers are not included among such clares it to be unlawful, among other things, by the terms of the preceding section) shall be for any candidate to provide, or agree to subject to removal for misconduct or mal-provide, any money to be used by another in

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making any bet or wager upon any event or contingency whatever arising out of the election. It is a penal statute, and declares that a violation of it shall be a misdemeanor. It does not declare that the guilty party shall forfeit his office as a part of his punishment. Even, however, if the charge were sufficient to justify removal from office, it needs no argument to show that this could not be done until after his prosecution and conviction in a court of competent jurisdiction. The board of trustees was not such a court. By the fifth specification it is attempted to prefer a charge of conduct inhibited by sections 6 and 9 of the corrupt practices act. To have sustained this charge, it must have appeared that the candidate not only did not file the statement of his expenses within the time required by section 6, but also that he did not file it before action was taken against him with reference thereto. That the provision as to time in section 6 is directory merely, we think clearly appears from section 9. This provides that, if the candidate shall refuse or neglect to file the statement prescribed in section 6, he shall be deemed guilty of a misdemeanor, punishable as above provided, and shall also forfeit his office. It does not provide, it will be seen, that, if he fails to file it within the time prescribed, he shall be guilty. Moreover, it may be said of this, as of the preceding charge, that the forfeiture of his office was dependent upon his being found guilty of the misdemeanor on trial in a court of competent jurisdiction. None of these charges or specifications, even if the relator had confessed each and all of them, were sufficient in law to have justified and sustained the respondent in its attempted removal of the mayor. There is another reason equally conclusive in favor of the rightfulness of the judgment rendered by the trial court. The mayor was an officer deriving his right and authority to hold office from the same source as did each of the members of the board, namely, an election by the qualified electors of the municipality. Not being an officer whose appointment was optional with, and made by, the board of trustees, and who held only at its pleasure, a legal cause for his amotion must have existed. Carter v. City of Durango, 16 Colo. 537, 27 Pac. 1057. To authorize the removal of such an officer, there must be a charge of something which constitutes a legal cause of amotion, and it must be sustained on a trial by competent legal evidence. The proceedings on the trial are judicial in their nature. Carter v. City of Durango, supra; Mechem, Pub. Off. § 455; Dill. Mun. Corp. § 253. It follows that the power of removal must be exercised under the same limitations, precautions, and sanctions as in other judicial proceedings, and that the regularity of the proceedings and the legality of the removal must always be open to review in the courts. Mechem, Pub. Off. 456; Stockwell v. Board, 22 Mich. 341;

Dullam v. Willson, 53 Mich. 392, 19 N. W. 112; Kennard v. Louisiana, 92 U. S. 480, 23 L. Ed. 478; High, Extr. Rem. § 407; Merrill, Mand. § 147. Upon proceedings in mandamus, therefore, to contest the right of removal, it is incumbent upon the respondent to show that such charges were preferred, and that they were sustained by legal evidence. In this case nothing of the kind was attempted. The testimony presented before the board is nowhere preserved in the record before us, nor in the minutes of the board, which were offered in evidence. The mere recital in the minutes of the board that there was evidence offered, and that the board found the accused guilty, is not sufficient. The respondent offered no evidence on the hearing in the district court to sustain the charges preferred, although it was denied in the reply of the relator that any evidence was received or heard by the board. Under these circumstances the court could not properly have done otherwise than to have awarded the peremptory writ. State v. Teasdale, 21 Fla. 652. Being unable to discover any error, the judgment will be affirmed. Affirmed.

(14 Colo. App. 1)

OVERHISER et al. v. OVERHISER. (Court of Appeals of Colorado. Nov. 13, 1899.) MUTUAL BENEFIT INSURANCE-RIGHTS OF

BENEFICIARIES.

The A. O. U. W. by-laws provide that the beneficiary shall be named in the certificate, and shall be within one of three designated classes of persons, and that, if the beneficiary dies, the fund shall go to certain heirs, in the absence of any further designation of a beneficiary by the insured. A wife (within one of the designated classes) obtained a divorce prior to the death of her husband, the insured. Held. that obtaining the divorce was not the legal equivalent of the death of the beneficiary, so as to give the heirs any right to the fund.

Appeal from district court, Arapahoe county.

Action by Lena Overhiser against James C. Overhiser and others. From a judgment for plaintiff, defendants appeal. Affirmed.

Teller, Orahood & Morgan and Clayton C. Dorsey, for appellants. R. D.. Thompson and S. N. Wheeler, for appellee.

WILSON, J. The sole question involved in this suit is the proper disposition of the fund arising from insurance in a mutual benefit association. In July, 1884, the grand lodge of the Ancient Order of United Workmen of Colorado, New Mexico, and Arizona issued to one of its members, George P. Overhiser, a beneficiary certificate, wherein it agreed that, upon his compliance with the rules and laws of the order, it would, upon his death, pay to a person to be designated by him the sum of $2,000. The beneficiary named in the certificate was the appellee, Lena Overhiser, who then bore to the member the relation of wife, and was so desig

nated in said certificate. In July, 1895, Mrs. Overhiser was granted a divorce from said George P. Overhiser. Some time in 1896 George P. Overhiser died; the beneficiary certificate being then in full force and effect, and no change having been made in the designated beneficiary, as it was the rightful privilege of George P. Overhiser to have had made, if he had at any time desired. The association raises no question as to its liability to pay the money, and in fact has paid the same into court, and been dismissed as a party to the suit; leaving the court to adjust the rights to the fund between the contending claimants, who are the divorced wife, Lena Overhiser, and the appellants herein, the father, mother, and sisters of the deceased. The entire constitution and by-laws of the association were not offered in evidence, but its object, so far as the payment of insurance benefits is concerned, is stated in the answer of the association, and not denied, to be "to pledge the members thereof to the payment of a stipulated sum to such beneficiary or beneficiaries as a deceased member may have designated while living, under such restrictions and upon such conditions as the laws of the order may prescribe." Such by-laws as were offered in evidence, and as are necessary to be considered, were as follows:

"The beneficiary shall be named in the beneficiary certificate, and shall be confined to one or more of the family of the member, or some person or persons related to him by blood, or who shall be dependent upon him.

"Note. Under no circumstances can a certificate be issued to any other person, and, should applicant have neither blood relative nor dependent (one claiming legal support), he cannot become a member of the order, as it has no mission to such person.”

"(16) Change of Beneficiary. Any member holding a beneficiary certificate, desiring at any time to make a new direction as to its payment, may do so by authorizing such change in writing on the back of his certificate in the form prescribed, attested by the recorder, with the seal of the lodge attached, and by payment to the grand lodge the sum of fifty cents; but no change or direction shall be valid or have any binding force or effect until such change shall have been reported to the grand recorder, the old certifi-, cate, or sworn proof of its loss, filed with him, and a new beneficiary certificate issued thereen, and said new certificate shall be numbered the same as the old certificate: provided, however, should it be impossible for the recorder of the subordinate lodge to witness the change desired by the brother, attestation may be made by a notary public, or an officer duly authorized to administer oaths; seal to be attached in attest. If one or more of the beneficiaries shall die during the lifetime of the member, and he shall have made no other direction, the surviving bene felary or benet darles shall be entitled to the benefit equally, unless otherwise provided in

the certificate; and if all the beneficiaries shall die during the lifetime of the member, and he shall have made no direction, the benefits shall be paid to his heirs at law; and, if there be no such, then the benefits shall revert to the beneficiary fund of the grand lodge."

"(4) In the portion of this fund, namely, two thousand dollars, to which the beneficiaries of the deceased member are entitled, the members themselves have no individual property right. It does not constitute a part of their estates to be administered, nor have they any right in or control over the same, except the power to designate the person or persons to whom, as beneficiaries, the same shall be paid at the death of a member. The beneficiaries thus designated have no vested right in said sum until the death of the member gives such right, and the designation may be changed by the member, in the method prescribed by the laws of the order, at any time before his death.

"(5) Liability. No liability for the payment of any money from this fund shall arise by virtue of any beneficiary certificate membership, or certificate of membership, or otherwise, unless the member of the order named in such certificate shall, in every particular, while a member of the order, comply with all the laws, rules, and requirements thereof, and shall at time of death be a member of said order in good standing, and that the certificate by virtue of which the demand is made shall not have been surrendered, or the right thereunder surrendered, by the member, or said certificate, or his rights thereunder, canceled at his request."

Another by-law provided the order of payment to beneficiaries in the event that the beneficiaries named in the beneficiary certificate should die during the lifetime of the member, and he should have made no other direction therefor. This was as follows: In such case "the benefit shall be paid to his widow, if living at the time of his death; if he leave no widow surviving him, then such benefit shall be paid, share and share alike, to his children, his grandchildren living at the time of his death to take the share to which their deceased parents would be entitled if living; if there be no children or grandchildren of the deceased member living at the time of his death, then said benefit shall be paid to his mother, if living, and, if she be found dead at the time of his death, then to his father, if living; and, should there be no one living at the time of the death of said member entitled to said benefit under the provisions thereof, then the same shall revert to the beneficiary fund of the supreme lodge."

It further appeared from the evidence that, when the decree of divorce was rendered in favor of Mrs. Overhiser, she was also allowed alimony in the sum of $900, to be paid in installments of $25 each, on the 1st of each month, commencing with the 1st of July,

1895, until the full sum was paid. It further appeared in evidence that at various times, both prior and subsequent to the divorce, Mrs. Overhiser had paid from her own funds some of the dues or assessments necessary to keep the beneficiary certificate in force. Judgment was in favor of Mrs. Overhiser, and from this the heirs at law appeal.

The discussion in the elaborate briefs of counsel has taken a wide range, embracing many questions which, in the view which we take of this case, are not necessary to be considered or determined. At the outset it may be said, as contended by counsel for appellants, that in contracts of insurance, such as the one under consideration, the beneficiary, whether the one named in the beneficiary certificate, or one who in some possible contingency may become such, has no vested right or interest in the contract, or in the fund which may arise therefrom, until the happening of the stipulated contingency, namely, the death of the member. It may be further conceded that, unlike ordinary life insurance, in which the policy itself contains the entire contract, a beneficiary certificate issued by a mutual benefit association of the character in question does not contain all the terms of the contract. These must be gathered from, and consist of, the charter or constitution of the society, its rules and bylaws, and the application of the member for a beneficiary certificate, as well as the certificate itself. We think, too, that it is equally true, and must be conceded in the absence of statute, as in this case, that the rights of all parties growing out of the contract must be measured and determined by the contract itself, and that, in so doing, the usual rules of construction applied to contracts generally must be observed. Chartrand v. Brace, 16 Colo. 22, 26 Pac. 152; Supreme Council of Royal Templars v. Curd, 111 Ill. 288; Golden Star Fraternity v. Martin, 59 N. J. Law, 207, 35 Atl. 908; Worley v. Association (C. C.) 10 Fed. 227; Bac. Ben. Soc. § 177. As tersely expressed in the last-cited authority, "Contracts of insurance have no particular sanctity over other kinds of agreements, and the same rules of interpretation apply to all alike." The contract in this case was, substantially, that upon the prompt payment to the association by George P. Overhiser of all dues and assessments thereafter made, and his observance of the rules of the society, the association would, upon his death, pay to the beneficiary designated in the contract (it being in this case Lena Overhiser) a certain sum of money. It is not contended that any of the conditions of this contract were violated by the insured member. On the other hand, it is conceded that it was in full force and effect at the time of the member's death. The only other restriction placed upon the member by the by-laws, rules, or regulations of the order was that the party named in the certificate should come within one of three privileged classes. It must be conceded that

this condition was also fulfilled; Lena Overhiser being, at the time of the issuance of the certificate to the member, one of his family, namely, his wife. All the conditions, therefore, which the association exacted, were specifically complied with. The contract was complete, and, so far as the association was. concerned, could not thereafter be defeated under the provisions of any rule or by-law, except by a failure to pay, and within the proper time, the dues and assessments which might be taxed against the member holding the certificate. The important question, however, is, what rights have the appellants, or any of them, to the fund arising from the payment of this certificate, and whence do they derive their rights? The contract, as we have seen, was complete with the member, by which it was stipulated that, in the event of his death, Lena Overhiser should be the beneficiary. According to the by-laws of the association, this right could be defeated, and the rights of appellants be initiated, in only one of two ways: First. By George P. Overhiser exercising his privilege of changing the name of the beneficiary in the method prescribed. This was never done nor attempted. Second. By the death of Lena Overhiser. She being alive, there can be no claim under this provision. How, then, can it be said that any rights whatever of appellants, or any of them, to the fund in question, have attached or could attach? It is claimed that because Lena Overhiser, before the death of George P. Overhiser, by virtue of her divorce, had departed from the privileged classes specified in the laws of the association, to whom insurance benefits should accrue, she should be considered as if dead. There might be some ground for this contention, if there were anything in the terms of the certificate, or in the by-laws or constitution of the order, which would indicate any such intention upon the part of the contracting parties. We are unable to find any such. When the beneficiary certificate issued, the contract was complete, and was such as the association had power to make. The language used is not obscure, nor of doubtful import, nor susceptible of a double construction. By what authority, then, can a court undertake to say that the contract meant something other and further than was expressed? In construing contracts, the chief object is to ascertain the intention of the parties as understood by them,-that upon which their minds came together and agreed. The arbitrary injection into it of new covenants, terms, or conditions, which might change its whole purport, although expressed in words of common usage, and not of doubtful signification, would do violence to reason and to every rule of construction. If we once enter the realm of conjecture, might we not with equal propriety and reason, under the circumstances of this case, assume that the designation of one as a beneficiary who was at that time competent to be such under the

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