People v. Scott , 52 Colo. 59 ( 1911 )

Mr. Justice Gabbert,

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 jf- * * * ” ■

“Section 3. Said court of appeals shall liáve 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.”

“Section 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and regulating-appeals from the district and county courts to the supreme court shall be, and the same are hereby repealed and the jurisdiction of the supreme court on appeal even as to causes already pending therein shall, save as in section 6 hereinafter provided, terminate upon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 dismissal of said pending appeals or of appeals 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. Supersedeas bonds in connection with all writs of error hereafter taken to review ordinary actions at law or in equity or special proceedings, shall be conditioned as how provided by. statute in such cases.”

“Section 5. The supreme court is also hereby authorized to transfer to- said court of appeals for hearing- and determination, by suitable orders in the premises, such other civil causes now or hereafter and during-the life of said last mentioned court, pending before the supreme court on error, as it may deem advisable, omitting, however, writs of error to' county courts. And immediately upon such assignment and transfer of causes so pending on error, the clerk of the court of appeals shall, by registered mail, notify the parties to each of said causes or their attorneys of record, of such transfer, and advise them that unless within thirty days from the date of said notice a petition be filed requesting that the same be remanded to the supreme court, a waiver by consent will be conclusively presumed of the right or. privilege, if any such right of 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.”

“Section 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.”

“Section 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 with the same effect as the supreme court * * Session Laws 1911, 266 et seq.

In support of the contention of counsel for relators, that the act is unconstitutional, it is urged that it is in conflict with our fundamental law, because it purports to take from the supreme court a part of its final appellate jurisdiction, vested in it by the constitution, and bestow it upon the court of appeals; because it purports to deprive the supreme court and litigants therein of the use of the writ of error or its equivalent as a writ of right running to all judgments of courts of record in this state contrary to the whole theory of the constitution and the common law principles and rules giving the writ of error as a writ of review and a writ of right; because by its terms it is made to operate retroactively, in terminating the jurisdiction of the supreme court already in exercise, and attempts to confer jurisdiction 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, article V 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.

By the constitution, “The judicial power of the state as to matters of law and equity, except as in the constition 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 co-extensive 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.”

“It shall have power to- issue writs of habeas corpus, mandamus, quo warranto, certiorari, injunction, and other original remedial writs, with authority to hear and determine the same; * * *. The supreme court shall give its opinion upon important questions upon solemn occasions when required by the' governor, the senate, or the house of representatives; * * Sections 1, 2 and 3, article VI.

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). It is patent from the constitutional provisions quoted that the supreine 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; consequently, a court of coordinate final jurisdiction cannot be established by statute, for 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 (279).

. ■ • The act in question creates the court of appeals for a specific purpose, of which we -take judicial notice, namely, to relieve the docket of the supreme court. .To this end it provides that the court of appeals shall have jurisdiction, under certain restrictions, to review and determine all causes pending in the supreme court at the time the act takes effect, save and except writs of error to county courts. The jurisdiction of the supreme court to determine cases on appeal, upon the act taking effect, is terminated, and thereafter causes can only be taken to this tribunal on error. All appeals pending in the supreme court immediately upon the organization of the court of appeals shall be transferred to it for hearing and determination. The supreme court is also authorized to transfer to- the court of appeals, 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 thirty 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 free-hold, or where the judgment reviewed -is for more than the sum of five thousand dollars, 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. ,

The main question, therefore, presented for determination on the subject of the constitutionality of the .act, except the one relating to its title, is, whether it purports to deprive this court of its constitutional authority, or litigants of their constitutional rights.

The first question, then, is-, does the act purport to make the court of appeals a court superior to, or of •coordinate 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 superintending control over inferior tribunals, nor with any original jurisdiction, whatever; neither- is it authorized to answer .executive or legislative questions; and, impliedly, it is not authorized to consider any causes* brought to the supreme court from the county courts on error. No attempt is made to interfere with the.jurisdiction and authority of the supreme court to hear and determine all cases brought to it, on error from other inferior tribunals of record subsequent to the organization of the court of appeals, although cases then pending on error or brought to it by that procedure thereafter may be transferred to the court of appeals, except those on error to county courts. In fact, from that date, it is vested with authority to hear and determine all cases then pending or brought to it on 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 necessarity requires a construction of a provision of the federal or state constitution or involves a franchise or a free-hold, or where the judgment, exclusive of costs, exceeds five thousand dollars, 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 co-ordinate or superior jurisdiction to the supreme court; that it is not vested with anj^ authority or powers conferred upon the supreme court alone by the organic law of the state, unless it be that the constitution inhibits an intermediate court of review whose judgment shall be final—a proposition I shall consider later; that in specific casesi its judgments may be reviewed by the supreme court; that in every respect it is inferior to the supreme court, and therefore, subject to its superintending control, and that by virtue of this authority, its judgments, which by the act are specified as final and conclusive, would be subject to review on certiorari in at least two instances: (i) Where it was without jurisdiction; and (2) where, in a clear case, it refuses to be governed or gúided by the law, as laid down in the previous decisions of the supreme court.—People v. Court of Appeals, 27 Colo. 405.

The next question naturally presented is, whether the act, by prescribing that the judgment of the court of appeals shall be final in certain cases, is unconstitutional. This proposition can only be answered in the affirmative upon the theory that by the constitution, no judgment of a court of review can, by legislative enactment, be declared final, except the judgment of the supreme court. This identical question was considered and determined in People v. Richmond, supra. The former court of appeals act, passed in 1891, provided that its judgment in all cases should be final, where the judgment reviewed, or in replevin the value found was twenty-five hundred dollars or less, exclusive of costs, except upon writs of error to judgments of- county courts, unless a decision involved a franchise or free-hold, or where the construction of a provision of the state of federal constitution was necessary, in which instances the act provided that the judgment of the court of appeals might be reviewed by the supreme court on appeal or error. Mills’ Code, sections 4o6d, 4o6e. The act was attacked in the case cited upon the ground that the legislature could not confer upon the court thereby created authority as a court of review, to pronounce a final judgment in any case. Passing upon that proposition, it was held (quoting from the syllabus) :

“The constitution confers and defines the jurisdiction of the supreme court, but it does not inhibit the legislature from regulating, to some extent, the quantum of its business by reasonably contracting or enlarging the limits of'such jurisdiction. The constitutional policy is not to specify absolutely the extent and boundaries of the jurisdiction of all courts, but to allow a large legislative discretion in connection therewith.”

On this subject, in the opinion it was said (281) :

“An extensive legislative power to regulate the exercise of judicial authority is an imperative necessity. A constitutional provision unalterably defining and fixing in all respects such jurisdiction would be a serious misfortune. The constitutional policy seems to have been not to specify absolutely the extent and boundaries of ' the jurisdiction of all the courts, but to allow a large legislative discretion, so that the varying demands and the ever-changing necessities of the people may from time to time be adequately provided for.”

What was there held, is certainly applicable here. The object of the act is to relieve the docket of the supreme court, by providing a tribunal of a temporary nature, vested with authority to finally dispose of certain cases pending in this court, by which means the causes pending here, and those remaining after the transfer of appeals, as well as those brought to the supreme court on error after the organization of the court of appeals, would be more speedily determined. The crowded state of the docket and the delay incident to disposing of the cases from this condition, certainly presented a situation which authorized the general assembly, in the exercise of a sound legislative discretion, to relieve.

But it is said that the act is unconstitutional because it purports to deprive litigants of the right to have this court review the judgments of courts of record on error. This assertion is based upon the assumption that under. the constitution the supreme court is empowered to review all such judgments by writ of error, and that, therefore, it cannot be deprived of this authority, nor litigants of this right by legislative action, and as certain judgments of the court of appeals are declared to be final and conclusive, the result is that the constitutional authority of the supreme court and the constitutional rights of litigants are invaded. This question was considered and determined in the Richmond case, where it was held that writs of error from the supreme court may be forbidden by statute, unless preserved by the constitution. But that instrument only saves this proceeding so far as ordinary appellate purposes are concerned, to review the judgments of county courts. In other words, except as to judgments of county courts, the writ of error from the supreme court is subject to legislative control.

In addition to the reasons advanced in the opinion in that case, why the contention made is not tenable, it can be said that if by the constitution the writ of error was preserved so as not to be subject to legislative control, it would have been wholly unnecessary to provide, as it has, in section 23, Article VI, that “writs of error shall lie from the supreme court to every final judgment of the county court.”

The argument in support of the proposition that the act is unconstitutional because it operates retrospectively by terminating the jurisdiction of the supreme court as to causes pending therein on appeal, when the act creating the court of appeals took effect, is to the effect that litigants having causes pending in the supreme court at that time on appeal could not be deprived of the right to have them determined here, nor the supreme court deprived of jurisdiction which had already attached. In Callahan v. Jennings, 16 Colo. 471, we held that a statutory right to have cases reviewed on appeal may be taken away by a.repeal of the. statute, even as to causes which have been previously appealed. This being true, it necessarily follows that the legislature is authorized to. direct that causes pending on appeal in the supreme court may be transferred to another court of competent jurisdiction.

The validity of the act is attacked because of the provisions of section 5, to the effect that causes pending in the supreme court on error, except writs of error to county courts, may be transferred to the court of appeals, and that unless one or the.other of such parties after notice of such transfer moves to remand to the supreme court within a time limited, the decision of the court of appeals shall be final, except the judgment is of that character which, by section 6, may be reviewed by the supreme court. This provision, it .is stated, is invalid because jurisdiction can not be conferred upon a court by consent of litigants, nor can a litigant waive a constitutional right. Neither of these propositions is involved. In the Richmond case it was held that a litigant has no natural or inalienable right to a hearing in the supreme court except as guaranteed by the constitution. This is guaranteed only as to judgments of the county court, which is preserved by the act; consecjuently, the legislature has the authority to confer jurisdiction upon the court of appeals to hear, determine and render final judgment in certain cases which, by the act, the supreme court is authorized to transfer to the court of appeals. Hence, it follows, that parties to such causes do not waive airy constitutional rights. The act gives them the option of waiving- a hearing- in the supreme court. This may be waived, but by so doing, a constitutional right is not waived. It may lie, as said in the briefs of counsel, that the section under consideration will cause transfers to be made back and forth, but that goes to its practicability, and not its validity.

It is urged upon our attention with vigor, that if it be conceded that the legislature may create courts of appellate jurisdiction, and define their authority, the functions, dignity and supremacy of the supreme court will be destroyed, and it may be left with only appellate-authority to review judgments of the county courts. I think I have answered this proposition by stating that the supreme court is placed by the constitution at the head of the judicial system of the state; that the legislature can not interfere with its existence or supremacy, nor alter the nature of its jurisdiction or duties. The act, as I have pointed out, does not attempt to do that which, by the constitution, I have said the legislature is inhibited from doing. The legislature is vested with a sound discretion with respect to creating intermediate appellate courts, but as held in the Richmond case, should this discretion be abused by an attempt to interfere with the existence and supremacy of the supreme court, or to change the nature of its jurisdiction and duties, or to take away its utility, legislation of this character would be void.

At the oral argument it was urged that the act was unconstitutional because the title does not conform to section 21, article V, of the constitution. This provision is mandatory, and must be observed; but it must receive a reasonable construction. In construing it we have frequently held that if legislation embraced in an act is germane to the subject expressed in its title, the constitution is complied with. The act is entitled: “An Act in Relation to Courts of Review”; and I think that all matters therein contained are relevant to that subject. In my opinion, the act is not unconstitutional for any of the reasons urged upon our attention.

I fully appreciate the importance of having the legal status of the court of appeals determined in a manner, if possible, which will enable it to at once enter upon the discharge of the duties and functions conferred upon it by law; but this desirability is wholly insufficient to justify either the executive or judicial departments to set at naught the will of the general assembly, lawfully expressed. In my judgment, the majority opinion accomplishes this result by a construction of section 1 of the act, which is wholly at variance with its intent and meaning on the subject of the authority of the governor to appoint the judges of the court of appeals.

The bill was passed and transmitted to the governor on the 4th of May last. The general assembly adjourned two days later. The governor filed the bill in the office of the secretary of state on June 5th, without his approval or disapproval. August 6th His Excellency, Governor Shafroth, by executive order, appointed respondents judges,of the court created by the act, such appointments to take effect October 1st, following. Respondents accepted, and on October 2nd took their respective oaths of office, which they filed with the secretary of state. On that date, this court transferred to the court of appeals all cases pending on appeal. Ever since such transfer respondents have been exercising and performing, with respect to the causes so transferred, the judicial functions and powers prescribed by the act creating the court of appeals. At no time since the general assembly adjourned has the senate been in session. .These facts present the concrete question, are respondents entitled to discharge the duties and perform the functions of judges of the court of appeals ? A solution of that question depends upon the construction of section i of the act, in connection with section 6, article IV, of the constitution. The latter is as follows:

“The governor shall nominate, and by and with the consent of the senate,. appoint all officers whose offices are established by this constitution, or which may be created by law, and whose appointment or election is not otherwise provided for; * * *. If, during a recess of the senate, a vacancy occurs in any such office, the governor shall appoint some fit person to discharge the duties thereof until the next meeting of the senate, when he shall nominate some person to fill such office. * *

The offices in question were not created by the constitution, but by statute; neither’ does the constitution provide how such offices shall be filled when created; consequently, the legislature possessed plenary power to provide for the manner of making the original appointments, and how vacancies should be filled. People v. Osborne, 7 Colo. 605. The vital question, then, is, are the appointments of respondents by the governor to- take effect before confirmation by the senate, lawful? Respondents are the original appointees.

The section of the constitution under consideration, and which controls the authority of the governor in this respect, inhibits such appointments, if by the section of the act providing for the appointment of the judges of the court of appeals their appointment, to become effective, can only be made in a specified manner. From this section we find that it specifies the qualifications of the judges, and that not more than three of them shall belong to the same political party. It then provides:

“Upon the taking effect of this act the governor shall, with the advice and consent of the senate, appoint said judges to serve during the existence of said court, designating one of them as presiding judge, but no suck appointment shall take effect until a confirmation thereof by the senate, except that in case of vacancy through death, resignation or removal from office, the governor shall fill the same until the next session of the legislature, when the senate may confirm or reject the appointment so made. Said judges shall enter upon the duties of their office immediately upon their appointment. Vacancies shall be filled in the same manner as the regular appointments are required to be made.”

This is all there is in the act relating to appointments of jüdges.

The cardinal rule to be followed in construing a statute is to ascertain the intent of the legislature in passing it, and to this end it is to be given a construction which will render it effective and accomplish the purpose of the legislative intent if such intent can be ascertained and reasonably inferred by permitted legal means. This is the first fundamental and paramount canon to be observed in construing a statute. Subsidiary rules may be invoked to ascertain the intent of an act if the words employed to express that intent present an ambiguity; but it is wholly unnecessary, as well as improper, to resort to them if the intent is clearly expressed by the act itself. Turning to the act we find it clearly expressed, that when the act takes effect the governor, with the advice and consent of the senate, shall appoint the judges to serve during the existence of the court. This clearly refers to the initial or original appointments, but the act further provides, in unmistakable terms, that these appointments shall not take effect until confirmed by the senate. Then follows an exception, which provides that in case of vacancy through death, resignation or removal from office, the governor shall fill such vacancy until the next session of the general assembly, when the senate may reject or confirm such appointment. This unquestionably refers to vacancies occasioned by the death, resignation or removal of the lawful appointees. This exception serves to demonstrate (if any demonstration whatever is necessary) the intent of the legislature to draw a line clearly marking the difference between the authority of the governor to' make the initial appointments, and those resulting from vacancies. This provision regarding vacancies was eminently proper, its purpose being not to permit vacancies to continue after the initial appointments, when lawfully made, until the general assembly should convene.

The final clause relating to vacancies requires that they shall be filled in the same manner as the original appointments are required to be made. This does not affect the question under consideration. " By that provision it was intended that in filling vacancies the governor should be controlled by the requirements with respect to qualifications, and that not more than three incumbents should belong to the same political party. It is so clear that the expressed intent of the legislature, from the language of the act, that the original appointments should not be effective until confirmed by the senate, that it is only necessary to refer to the section itself in order to reach this conclusion. O11 this subject it speaks for itself. Argument can not make it any more clear than it is by the language employed. In brief, my conclusion is, that as respondents are the original appointees, their appointment must be confirmed by the senate before they can act as judges of the court of appeals.

The majority opinion, upholding the validity of the appointment of respondent is based upon two propositions, which will be considered inversely to the order they are treated in that opinion.

It is there stated, in effect, that to give the act a construction which would require the appointment of respondents to be submitted to the senate for confirmation, and that they must be confirmed by that body before^ authorized to discharge the duties and functions of judges of the court of appeals, would place the general assembly in the absurd position of creating a court to relieve the congested condition of the docket of the supreme court, but which new court could not enter upon the duties for which it was created for a period of at least fifteen months or until the next meeting of the general assembly. The desirability of bringing about a certain result is no excuse for shrinking from the duty of upholding the will of the legislature, lawfully expressed. The argument is ab inconvenient^ but wholly untenable. It is the duty of both the executive and judicial departments to obey the lawful mandates of the legislature, whatever the result may be. If, however, the argument ab inconvenienti is entitled to any consideration, it might well be said that the interest of the bar, litigants, and the people, will be best subserved by the appointment of judges upon the organization of the court who, by reason of their confirmation, could serve during the-^xTshs^ice of the court. It was a new court, created with extensive powers and jurisdiction, and it was entirely within the constitutional authority of the legislature to provide that the senate should have a voice in making the original appointments of the judges of that tribunal. As a matter of fact, however, the supposed result is purely imaginary. Section 9 of article IV of the constitution empowers the governor to convene the senate in extraordinary session for executive business. Executive business embraces the confirmation of appointments by the governor. Convening the senate will entail expense to the state, of course, but that is no excuse for this court giving- the act a construction which does not require that body to convene and confirm the appointment of respondents, unless such a construction is justified. The general assembly is responsible for whatever expense, inconvenience or delay may grow out of an extraordinary session of the senate, not the executive or this court.

The majority opinion upholds the validity of the appointment of respondents upon the ground that the act made no provision for filling vacancies in a newly created office during the recess of the senate, and that, therefore, the governor, by virtue of the provisions of section 6 of article IV of the: constitution was authorized to appoint respondents to discharge the duties of judges until the next meeting of the-' senate. This conclusion is based upon a wrong 'premise. By specifying the vacancies which the governor was authorized to fill during the recess of the senate, all others are excluded. Its purpose in making this specification was to prevent a hiatus in the personnel of a body previously lawfully organized. “Vacancy” is a relative term. It may'apply to a newly created office which has never been filled, or to a vacancy caused by the death, resignation or removal of an encumbent. Under the provisions of the section of the constitution invoked the governor is only, authorized to appoint officials to offices created by statute whose appointment is not otherwise provided for, and during the recess of the senate may fill a vacancy occurring in any such office. It stands admitted that the authority of the governor to make appointments is controlled by the act to the extent it prescribes how the appointments shall be made. Turning to the act, it will be found that the first authority conferred upon the governor to make appointments is that which he is authorized to make when the act takes effect. These are the identical appointments now under consideration, and which haVe never been submitted to the senate for confirmation, but which the.act in express terms says shall not take effect until confirmation by that bod}''. So that it is evident, from the undisputed facts, that by the appointment of respondents- the governor was not filling a vacancy resulting • from the death or resignation of an incumbent, neither was he filling a vacancy caused by a newly created office never having, been filled, which, by the. constitution, he would be authorized to fill during the recess of the senate,-'.if not-otherwise provided for; for, by the very terms-.---of: the constitution, the latter appointments can only- be 'made in the manner the act provides, namely, that they-can-only become effective, by the section of the act under consideration, when confirmed by the senate. The majority opinion seeks, however, to -avoid this conclusion; on the authority of People v. Rucker, 5 Colo. 455, but -which-is in no sense a parallel case.

In that case the court had under consideratioiran act creating a criminal court for the county of Take. ■ It provided that the governor, with the advice and consent -of the senate, should appoint the incumbent for the newly created office, but that a vacancy occurring during the recess of the senate should be filled by the-governor.' The general assembly,-adjourned -without-.an appointment having been made, -and it was held that a- vacaricy existed which could then be filled in the manner provided by the constitution.

Mark the distinction between the provisions of; the two acts. In the ..Rucker case, the initial áppointnient. was to-be made -with the advice-and-consent-of the’senate, but if not so made, then during the recess of that body the vacancy thus created should be filled; while in the case at bar, original appointments are not to become effective until confirmed by the senate. In other words, the distinction is, that in the Rucker case provision was made for filling the office originally by appointment during the recess of the senate if not filled while that body was in session; but in the act under consideration no such provision was made. -On the contrary, it expressly provides that original appointments can only be made with the advice and consent of the senate, and that the only vacancy which the governor is authorized to fill during the recess of that bod)' are those arising from death, resignation or removal from office of incumbents. It is ■only necessary to refer to the two acts to demonstrate that the decision in the Rucker case is in no sense authority for the conclusion that the governor, by the appointment of respondents was filling a vacancy in a newly created office which be was- authorized to fill during the recess of the senate. When rightly understood and applied, the Rucker case is against the conclusion of the majority, for, in principle, at least, it sustains my views.

Had the court of appeals act, instead of providing that vacancies resulting from specified causes might be filled by appointment during the recess of the senate, said that all vacancies .should be filled during that period by the governor, there would be some ground for the conclusion announced by the majority, that the appointment "of respondents was valid. It is only by making the section read that all vacancies occurring during the recess of the senate, however occasioned, may be filled by the governor during that period, that the conclusion of the majority can be upheld. This, I most respectfully submit, does as much violence to the section as though it were held that the governor need not submit any appointment to the senate for confirmation. It is true that .the courts have often been compelled to depart from the literal meaning of the language employed in a legislative enactment. This, however, is never permissible except to gwe that effect to an act necessary to carry out its intent. To do otherwise is judicial legislation, • which is universally and properly condemned. It is not uncommon for lawyers, as well as laymen, to criticise opinions of courts of reviéw where, in construing a statute, in order to declare its intent, it is necessary to supply or omit words. A striking example was the criticism of the opinion of the supreme court of the United States, in the Standard Oil case, by reading into the “Sherman Act” the word “reasonable.” The criticism was wholly unjustified, because it was apparent that the word “reasonable” had to be supplied in order to express the true intent of the act. In the case at bar, however, there is not the slightest excuse, in my judgment, for injecting or rejecting an}'- Avord or clause, or changing its phraseology in any respect, for the reason that, from the Avords employed, the intent of the statute clearfy appears. This being the fact, Avith due respect I submit that the conclusion of the majority, on the subject under consideration, can only be upheld by assuming that the English language is inadequate to express a clear legislative intent; or that, in this instance, the general assembly employed Avords to conceal a legislative intent, instead of to express it.