Gambar halaman
PDF
ePub

drawn. Upon final hearing the relator offer- tion as to wherein this rule is qualified or reed in evidence, by consent of parties, the rec- laxed by reason of the provisions of our Code, ord of proceedings of the board of trustees it is sufficient to say that under the decisions at the various alleged meetings when the of our supreme court-two of which we have charges had been preferred and considered, cited above-the rule referred to does not and when the removal had been ordered, and prevail in this jurisdiction. a successor elected. Respondent offered no Upon the filing of the answer or return to evidence. After argument the court award- the writ, the relator replied. This was ated a peremptory writ directing the restora- tacked for insufficiency, and thereupon an tion of the relator to his office. The respond- amended reply was filed by leave of the court. ent brings the case here on error for review. In this the relator denied that he was sum

The first question raised is as to the suf- moned to appear before the board of trustees ficiency of the alternative writ. It is urged to answer the pretended charges; admitted that the writ fails to state a cause of ac- that a special meeting of the board was pretion. It is settled in this state that an al- tended to be held on the day alleged, but deternative writ performs the office of a com- nied that said meeting had been duly or reguplaint in an ordinar civil action, and that it | larly called; denied that he appeared in permust state a cause of action, and, in case of son; denied that at a subsequent meeting of failure to do so, it will not support a judge the board, when final action was alleged to ment. Wheeler v. Irrigating Co., 10 Colo. have been taken upon the charges, he ap582, 17 Pac. 488. The writ in this instance peared in person or by his attorney; denied was not attacked by demurrer, but it is equal- that after hearing the evidence, or any evily well settled that without this the question dence, the board found that each or any of of the sufficiency of the writ to state, a cause the pretended charges were sustained, or that of action may be raised and considered on ap- the office of mayor was declared vacant; depeal or error. Nance v. People, 25 Colo. 252, nied that any vacancy did exist in the office 54 Pac. 631. The objection of respondent, of mayor. Respondent insists that by filing a however, is, in our judgment, not well taken. reply the relator admitted the legal sufficiency The writ states a cause of action. It sets of the return as a complete answer to the alforth the election and qualification of the re- ternative writ, and that hence it was entilator, his entry upon the duties of his office, tled to judgment on the pleadings; a motion and his continuing to exercise the functions to which effect was made, but overruled. Reand perform the duties thereof from April spondent further contends that the reply did 9, 1897, to June 1, 1897, at which tinie it

not put in issue any of the material facts alsets forth that the respondent illegally, leged in the return. To this contention we wrongfully, and without warrant of law pre- cannot agree, although, in the view which we tended to remove and oust him from his of- take of the case, it is not necessary to enter fice, and has ever since unlawfully, wrong- into a discussion as to what constituted the fully, and against his rights and privileges, material facts alleged in the return and what etc., refused, and still refuses, to recoguize were denied by the reply. We will only say him as mayor, or permit him to perform the

that the effort of counsel to sustain his posifunctions and duties of his office, notwith- tion by extended reference to the first reply standing he has been at all times willing and filed cannot avail them. The amended reply qualified so to do. All that he could allege filed by leave of the court became substituted was the unlawful removal and refusal to ac- for the original, and its statements alone knowledge him. It was not incumbent upon could be considered in a determination of this him in the petition, nor was it necessary in question upon the pleadings. We prefer to dithe writ, to set forth why and wherefore the rect our attention to the broad ground assumboard of trustees attempted to remove him. ed by counsel, that by failing to demur to These were purely matters of defense, and the answer, and by pleading to the return, the it was for respondent to set them forth in relator admitted that the facts which it preits answer or return to the writ, as it did. sented constituted upon their face a sufficient Moreover, it is held that the rules of plead- answer to the alternative writ, and that in ing in civil actions prescribed by the Code this instance respondent was entitled to judgare applicable to proceedings in mandamus, ment thereon. Whatever may be the rule as except in cases where a different or special to the method of pleading, we do not think rule is provided by the Code or statute. Peo- that upon reason, principle, or authority it ple v. Lothrop, 3 Colo. 429; Nance v. People, can go to the extent of absolutely binding the supra. If there was any defect, therefore, in court, and precluding it from rendering judgthe writ in this respect, it was aided, and the ment in favor of the relator, where it appears defect su ed, by the allegations of the an- that the matters set up in the answer or reswer. We are cited by counsel to section 546, turn furnish no legal justification for the acts High, Extr. Rem., wherein it is claimed the of respondent. A rule of this kind would rule is laid down that the sufficiency of a lead to incalculable mischief and confusion. writ is to be determined solely from its own If the relator failed to attack the sufficiency contents, and any defects which may be ap- of the answer, and elected to reply to some parent therein cannot be supplied by the re- of its allegations, the truth of which might be turn. Without stopping to discuss the ques- questionable, this act of itself would fix and determine the judgment of the court. The feasance in office in such manner as may be court itself, upon this theory, would be abso provided by law. Whether this language is lutely precluded from rendering a judgment in exclusive, and would preclude a legislative favor of relator, although it might appear that enactment specifying other grounds of removthe allegations of the answer showed upon al, does not arise in this case. The statute their face that the respondent was guilty of does not enumerate other causes of removal, an unwarranted usurpation of power and au- nor, in fact, any. Clearly, therefore, it would thority, and that its acts were without any seem that the only grounds of removal of a authority or justification in law. Such a re- duly elected and qualified mayor would be sult would be contrary to every rule and those specified in the constitution. Such an principle of reason and law. As we have be- officer being neither elected nor appointed by fore said, however, the rules of pleading in the board of trustees, it would have no inbercivil actions prevail in mandamus in this ju- ent power to remove him. It could have, in risdiction, except where it is otherwise special- this respect, such power only as granted to it ly provided. There is no special provision sus- by law, statute or constitutional. These taining the contention of respondent, and the views accord, in principle at least, with those ordinary rules of pleading in civil actions do announced by our supreme court. In re pot. Therefore it is conclusive to our minds Speakership, 15 Colo. 520, 25 Pac. 707, 11 L. that the rule contended for does not prevail R. A. 241; Trimble v. People, 19 Colo. 187, here, however it may have existed under the 34 Pac. 981. Surely, the contention cannot old form of procedure and in that of other ju- be supported by either law or reason that the risdictions where different code and statutory lawfully elected incumbent of a municipal oflaws prevail. We think the true rule is, under fice provided for by statute, elected by the our procedure, that the return or answer to voters of the town, can be removed by the the writ of mandamus must show a full and board of trustees at its arbitrary will and complete legal defense to the acts complained pleasure. If so, the election by the people of, where the writ or complaint is sufficient, might as well be dispensed with as a useless before the trial court can be precluded from procedure, and the board be invested with surendering judgment in favor of the relator, preme authority. if such judgment be proper in the premises There were no findings by the court in this upon the facts disclosed, even though a reply instance, and we are therefore left in the should be filed.

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 suffiniayor, 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 re- the 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 de nicipal 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 fnr misconduct or mal. | provide, any money to be used by another in making any bet or wager upon any event Dullam v. Willson, 53 Mich. 392, 19 X. W. or contingency whatever arising out of the 112; Kennard v. Louisiana, 92 U. S. 480, 23 election. It is a penal statute, and declares L. Ed. 478; High, Extr. Rem. $ 407; Merrill, that a violation of it shall be a misdemeanor. Mand. § 147. Upon proceedings in mandaIt does not declare that the guilty party shall mus, therefore, to contest the right of reforfeit his office as a part of his punishment. moval, it is incumbent upon the respondent Even, however, if the charge were sufficient to show that such charges were preferred, to justify removal from office, it needs no and that they were sustained by legal eviargument to show that this could not be done dence. In this case nothing of the kind was until after his prosecution and conviction in attempted. The testimony presented before a court of competent jurisdiction. The the board is nowhere preserved in the record board of trustees was not such a court. By before us, nor in the minutes of the board, the fifth specification it is attempted to pre- which were offered in evidence. The mere fer a charge of conduct inhibited by sections recital in the minutes of the board that there 6 and 9 of the corrupt practices act. To have was evidence offered, and that the board sustained this charge, it must have appeared found the accused guilty, is not sufficient. that the candidate not only did not file the The respondent offered no evidence on the statement of his expenses within the time re- hearing in the district court to sustain the quired by section 6, but also that he did not charges preferred, although it was denied in file it before action was taken against him the reply of the relator that any evidence with reference thereto. That the provision was received or heard by the board. Under as to time in section 6 is directory merely, these circumstances the court could not propwe think clearly appears from section 9. erly have done otherwise than to have This provides that, if the candidate shall awarded the peremptory writ. State v. Teasrefuse or neglect to file the statement pre- dale, 21 Fla. 652. Being unable to discover scribed in section 6, he shall be deemed any error, the judgment will be affirmed. guilty of a misdemeanor, punishable as Affirmed. 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

(14 Colo. App. 1) prescribed, he shall be guilty. Moreover, it

OVERHISER et al. v. OVERHISER. may be said of this, as of the preceding (Court of Appeals of Colorado. Nov. 13, 1899.) charge, that the forfeiture of his office was MUTUAL BENEFIT INSURANCE-RIGHTS OF

BENEFICIARIES. dependent upon his being found guilty of the

The A. O. U. W. by-laws provide that the misdemeanor on trial in a court of competent

beneficiary shall be named in the certificate, jurisdiction. None of these charges or speci- and shall be within one of three designated fications, even if the relator had confessed classes of persons, and that, if the beneficiary each and all of them, were sufficient in law

dies, the fund shall go to certain heirs, in the

absence of any further designation of a beneto have justified and sustained the respond- ficiary by the insured. A wife (within one of ent in its attempted removal of the mayor. the designated classes) obtained a divorce prior There is another reason equally conclusive

to the death of her husband, the insured. Held,

that obtaining the divorce was not the legal in favor of the rightfulness of the judgment

equivalent of the death of the beneficiary, so as rendered by the trial court. The mayor was to give the heirs any right to the fund. an officer deriving his right and authority

Appeal from district court, Arapahoe counto hold office from the same source as did

ty. each of the members of the board, namely,

Action by Lena Overhiser against James an election by the qualified electors of the

C. Overhiser and others. From a judgment municipality. Not being an officer whose

for plaintiff, defendants appeal. Affirmed. appointment was optional with, and made by, the board of trustees, and who held only

Teller, Orahood & Morgan and Clayton C. at its pleasure, a legal cause for his amotion Dorsey, for appellants. R. D. Thompson and must have existed. Carter v. City of Duran- S. N. Wheeler, for appellee. go, 16 Colo. 537, 27 Pac. 1037. To authorize the removal of such an officer, there must be WILSON, J. The sole question involved a charge of something which constitutes a in this suit is the proper disposition of the legal cause of amotion, and it must be sus- fund arising from insurance in a mutual bentained on a trial by competent legal evi- efit association. In July, 1884, the grand dence. The proceedings on the trial are ju- | lodge of the Ancient Order of United Workdicial in their nature. Carter v. City of men of Colorado, New Mexico, and Arizona Durango, supra; Mechem, Pub. Off. $ 455; issued to one of its members, George P. OverDill. Mun. Corp. 8 253. It follows that the hiser, a beneficiary certificate, wherein it power of removal must be exercised under agreed that, upon his compliance with the the same limitations, precautions, and sanc- rules and laws of the order, it would, upon tions as in other judicial proceedings, and his death, pay to a person to be designated that the regularity of the proceedings and by him the sum of $2,000. The beneficiary the legality of the removal must always be named in the certificate was the appellee, open to review in the courts. Vechem, Pub. Lena Overhiser, who then bore to the memOff. § 456; Stockwell v. Board, 22 Mich. 341; ber the relation of wife, and was so designated in said certificate. In July, 1895, Mrs. the certificate; and if all the beneficiaries Overhiser was granted a divorce from said shall die during the lifetime of the member, George P. Overhiser. Some time in 1896 and he shall have made no direction, the benGeorge P. Overhiser died; the beneficiary efits shall be paid to his heirs at law; and, if certificate being then in full force and effect, there be no such, then the benefits shall reand no change having been made in the des- vert to the beneficiary fund of the grand ignated beneficiary, as it was the rightful | lodge." privilege of George P. Overhiser to have had “(4) In the portion of this fund, namely, made, if he had at any time desired. The two thousand dollars, to which the beneassociation raises no question as to its liabili- ficiaries of the deceased member are entitled, ty to pay the money, and in fact has paid the the members themselves have no individual same into court, and been dismissed as a par- property right. It does not constitute a part ty to the suit; leaving the court to adjust the of their estates to be administered, nor hare rights to the fund between the contending they any right in or control over the same, claimants, who are the divorced wife, Lena except the power to designate the person or Overhiser, and the appellants herein, the fa- persons to whom, as beneficiaries, the same ther, mother, and sisters of the deceased. shall be paid at the death of a member. The The entire constitution and by-laws of the beneficiaries thus designated have no vested association were not offered in evidence, but right in said sum until the death of the memits object, so far as the payment of insurance ber gives such right, and the designation benefits is concerned, is stated in the answer máy be changed by the member, in the methof the association, and not denied, to be “to od prescribed by the laws of the order, at any pledge the members thereof to the payment time before his death. of a stipulated sum to such beneficiary or “(5) Liability. No liability for the pay. beneficiaries as a deceased member may have ment of any money from this fund shall designated while living, under such restric arise by virtue of any beneficiary certificate tions and upon such conditions as the laws of membership, or certificate of membership, or the order may prescribe." Such by-laws as otherwise, unless the member of the order were offered in evidence, and as are neces- named in such certificate shall, in every parsary to be considered, were as follows: ticular, while a member of the order, comply

"The beneficiary shall be named in the with all the laws, rules, and requirements beneficiary certificate, and shall be confined thereof, and shall at time of death be a memto one or more of the family of the member, ber of said order in good standing, and that or some person or persons related to him by the certificate by virtue of which the demand blood, or who shall be dependent upon him. is made shall not have been surrendered, or

"Yote. Under no circumstances can a cer- the right thereunder surrendered, by the tificate be issued to any other person, and, member, or said certificate, or his rights should applicant hare neither blood relative thereunder, canceled at his request.” nor dependent (one claiming legal support), he Another by-law provided the order of paycannot become a member of the order, as it ment to beneficiaries in the event that the has no mission to such person."

beneficiaries named in the beneficiary certifi"(16) Change of Beneficiary. Any member cate should die during the lifetime of the holding a beneficiary certificate, desiring at member, and he should have made no other any time to make a new direction as to its direction therefor. This was as follows: In payment, may do so by authorizing such such case the benefit shall be paid to his change in writing on the back of his certifiewidow, if living at the time of his death; if cate in the form prescribed, attested by the he leave no widow surviving him, then such recorder, with the seal of the lodge attached, benefit shall be paid, share and share alike, and by payment to the grand lodge the sum ' to his children, his grandchildren living at of fifty certs; but no change or direction : the time of his death to take the share to shall be valid or have any binding force or which their deceased parents would be entieffect until such change shall have been re.

tled if living; if there be no children or ported to the grand recorder, the old certifi- grandchildren of the deceased member living cate, or sworn proof of its loss, filel with at the time of his death, then said benefit him, and a new beneficiary certificate issued shall be paid to his mother, if living, and, if thereon, and said new certificate shall be she be found dead at the time of his death, numbered the same as the old certificate: then to his father, if living; and, should there provided, howerer, should it be impossible be no one living at the time of the death of for the reconler of the subordinate lodge to said member entitled to said benefit under witness the change desired by the brother, the provisions thereof, then the same shall attestation may be made by a notary publie, rerert to the beneficiary fund of the supreme or an officer duis authorized to administer louge." oaths; seal to be attachei in attest. If one It further appeared from the evidence that, or more of the beneficiaries shall die during when the decree of divorce was rendered in the lifetime of the member, and he shall have faror of Mrs. Orerhiser, she was also allow. made no other diration, the surviving bene ed alimony in the sum of $900, to be paid ticary or bemediaries shall be entitled to the in installments of $25 each, on the 1st of benedt equally, unless otherwise provided in, 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. Overbiser 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 wbich 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, there fore, 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 righ'ts of appellants be initiated, in only one of two ways: First. By George P. Overbiser 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

« SebelumnyaLanjutkan »