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(8 Colo. 461)
Filed December 4, 1885.
ART. 12, § 6.
An information in the nature of a quo warranto, based on 5 & 6 Edw. VI. c. 16, having been previously filed by the attorney general to oust a judge, and the information having been not entertained on the ground of the repeal of said statute, motion was made for leave to file an amended information based on the sixth section of article 12 of the state constitution as well as the English statute, which motion is here denied, in that the matters therein contained as to one part were covered by the former decision, and as to the other part are without the jurisdiction of the court. Quo warranto.
T. H. Thomas, Atty. Gen., Thornton H. Thomas, and Luther H. Dixon, for plaintiffs.
Charles S. Thomas, Clinton Reed, Joseph A. Taylor, Wm. Kellogy, J. B. Bissell, and C. I. Thompson, for defendant.
PER CURIAM. At the April term, 1884, of this court an information in the nature of a quo warranto was filed against the above-named defendant by the attorney general, upon his own relation, to oust said defendant from his office of judge of the district court of the Fifth judicial district. The charges perferred were to the effect that the defendant was disqualified to hold said office at the time of his election thereto, and at the time of his induction into office. The attorney general based the charges and rested the jurisdiction of this court to entertain them upon the English statute of 5 & 6 Edw. VI. c. 16. The court, however, declined to entertain the information, upon the ground that the statute mentioned had been repealed by the legislature, and was not in force in this state. At the October special term this year the attorney general asked leave to file an amended information in the same case, basing the charges therein contained upon section 6 of article 12 of the state constitution, as well as upon the statute of 5 & 6 Edw. VI. The motion was set down for hearing, and was discussed at length by counsel, both on the part of the state and on behalf of the defendant, briefs also being filed by both parties. The first three counts are substantially the same as those filed in the original information, and relate to the antecedent disability of the defendant to take and administer the office to which he was elected. The remaining counts charge acts done by said defendant since his induction into office, which are alleged to disqualify him to hold and administer the duties thereof.
Previous to the hearing, the attorney general stated to the court and opposing counsel that if the information, as amended, could not be entertained, he intended to strike out the counts charging the defendant's disability at the time of entering into office, and then file the document as an original information upon the charges contained in the remaining counts. Thereupon, by agreement of counsel, as the court understood at the time, and as a matter of convenience,