
    [No. 6277.]
    Board of County Commissioners of the City and County of Denver v. Meyer.
    1. Constitutional Law — Article XX — Immediately, upon the taking effect of article XX of the constitution, the official term of th« superintendent of schools next theretofore elected for the old county of Arapahoe, terminated. No such office existed in the new entity, the city and county of Denver, and there could be no incumbent thereof. Having been chosen to the office of superintendent of schools for the city and county of Denver, at the first election under its charter, adapted pursuant to article XX, she was not entitled to receive, in such office, the salary prescribed by the general law, but only that fixed by the charter.
    2. Judgment — When Res Judicata — A. judgment of the district court determined that plaintiff was the county superintendent of schools for the city and county of Denver and entitled to the salary prescribed by the general law. Subsequent to this she was chosen superintendent of schools for that territory, under the city charter, qualified under such election, and served for some months, accepting th« salary prescribed by the charter. She then brought an action to recover the salary prescribed by the general law for this period, less the sum she had already received under the charter provision. Held, that the former judgment was not res judicata of the questions presented in her new action, as an entirely different state of facts was involved, presenting different parties, different subject matter and new issues.
    
      
      Error to Denver District Court, — Hon. George W. Allen, Judge.
    Mr. Fred W. Parks, for plaintiffs in error.
    Messrs. Yeaman & Gove, for defendant in error.
   Mr. Justice Bailey

delivered the opinion of the court:

This is an action in mandamus to compel defendants, as a board of county commissioners, to- audit and allow, and cause to be issued and delivered to plaintiff, a warrant for a balance alleged to be due for salary, under the state law, as county superintendent of schools of the city and county of Denver. To- a judgment making the- writ final, defendants bring error.

The facts are not in dispute. The record shows that at the general election in November, 1901, plaintiff was chosen to the office of superintendent of schools for Arapahoe county, and that she qualified and entered upon the duties of her office in January next thereafter. Under the provisions of the constitution as it then stood, her term o£ office was for two years, and would have expired in January, 1904. At the general election in November, 1902, article XX of the constitution was adopted, and became effective the following December by proclamation of the governor. On March 29th, 1904, pursuant to the provisions of article XX, the city and county of Denver adopted a charter, which, among other things, designated the office of county superintendent of schools of the city and county of Denver, with a salary of $900.00 per annum. In May, 1904, at a general city and county election, plaintiff was elected under the charter to, arid on June 1st following qualified for, that office, and served and received the salary, as provided for by the charter, for seven and one-half months, the period involved in this action. The plaintiff now claims that for this period she was entitled to compensation at the rate of1 $2,800.00 a year, under the state law, or $1,711.68, less the surn.of $55.0.00,: which she had. received as,, salary under the charter, leaving a balance due of $1,161.08.

This question has been, by this court, frequently determined contrary to the contention of plaintiff. Her term of office as county superintendent.of .schools for .Arapahoe .county was expressly terminated by article XX on December 1, 1902, when it went into effect. She-never was county superintendent : of.- schools, .under the: general laws,- .-for - the new entity, “The-City -and County of-Denver.” No- such county office ever has existed in that territory,-., and. -naturally there could not-have been-.an occupant of that office.. Plaintiff was, arithe May election in 1904, under -the charter,- chosen to the office of county superintendent of schools for the .-city ánd county of Denver. As such officer it became and was her duty, in addition to discharging the duties of superintendent of schools, under the charter, to also discharge; for the same salary, .the duties therein which devolve .upon' county, superintendents of schools generally under ..the-state laws... During-, this period the only salary plaintiff was entitled to have was that provided by the charter: This she has already received. On no theory is she entitled to get more. The.following authorities are-conclusive upon the foregoing propositions: McMurray v. Wright, 19. Colo. App. 17; Uzzell v. Anderson et al. 38 Colo. 32; Orahood. v. City and County of Denver, 41 Colo. 172; Aichele v. City and County of Denver, 120 Pac. (Colo.) 149; People ex rel. v. Cassiday et al., 50 Colo. 503; Dixon v. People ex rel., decided: October 25, 1912; and Elder v. City and County of Denver, decided November 11, 1912.

• It is urged that whether plaintiff was county superintendent of schools, as claimed in-this suit, has been determined in her favor in an action in the district - court of the- city and county of Denver, brought by her against William A. Hoover et al1.', the executive officers of the city and county of Denver, to compel- them, and in which they were adjudged, to draw and ■ certify salary warrants in favor of the- plaintiff, as such officer, for the six months’ period immediately prior to that involved in this suit. That judgment is in direct conflict with numerous decisions of this court, some of which are cited above, notably the Cassiday, the Elder and the Anderson cases, wherein the precise questions upon which plaintiff here relies to support a recovery, although between different parties and affecting the status of different county officers, were determined contrary to the conclusion reached in the Hoover case. Under such circumstances, it may well be doubted whether this court would be bound by a decision of a nisi prius court,.on a question of res judicata, even if all the elements were there present to make such decision applicable here on that theory.

This record, however, shows that after the Hoover decision plaintiff was elected county superintendent of schools for the city and county of Denver under the charter, qualified and acted as such during the full period covered in this controversy. When she was so elected and qualified, then by charter designation she became the officer or agent to discharge in that territory, if it was intended by article XX that there should ever be such an officer therein, all duties appertaining to that office, under the general law. Whatever, di Eference- of opinion there may be as to whether plaintiff was, prior to her election under the charter, county superintendent of schools in that territory under the state law, after the adoption of article XX, either de jure or facto, clearly after such election and qualification she was only an officer therein under the charter. So that, in this suit, in addition .to having different parties, different subject-matter, and different issues from those in the Hoover case, a thing has intervened, to-wit, the election, of plaintiff as county superintendent of schools under the charter, which changes the entire situation, and' therefore, in no event, can the decision in the Hoover case be held to be res judicata of -the questions at issue in this: case.

It failing to- appear from the case as made by plaintiff that there was) any duty upon the ¡defendants to audit, allow or draw warrants for her claim, the' judgment so directing-was wrong and is reversed, and the cause remanded with directions to* dismiss the complaint.

Mr. Justice Musser and Mr. Justice White concur.  