Bill Dreiling Motor Co. v. Court of Appeals

• Decision Date: 13 April 1970
• Docket Number: No. 24610,24610
• Citation: 171 Colo. 448,468 P.2d 37
• Parties: BILL DREILING MOTOR COMPANY, a Colorado corporation, Plaintiff, v. The COURT OF APPEALS of Colorado, Harry S. Silverstein, Jr., Ralph H. Coyte, William F. Dwyer, Charles D. Pierce, Philip G. Dufford and David W. Enoch, Defendants.
• Court: Colorado Supreme Court

Page 37

468 P.2d 37

171 Colo. 448

BILL DREILING MOTOR COMPANY, a Colorado corporation, Plaintiff, v. The COURT OF APPEALS of Colorado, Harry S. Silverstein, Jr Ralph H. Coyte, William F. Dwyer, Charles D Pierce, Philip G. Dufford and David W Enoch, Defendants.

No. 24610.

Supreme Court of Colorado, En Banc.

April 13, 1970.

Maley & Schiff, John T. Maley, Denver, for petitioner.

Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., Denver, for respondents.

DAY, Justice.

This is an original proceeding in which petitioner seeks a writ of quo warranto challenging the authority of the Colorado Court of Appeals to entertain a writ of error of petitioner to the District Court judgment against it and in favor of St. Paul Fire & Marine Insurance Company--not a party joining in these proceedings. We issued a rule to show cause.

The action was filed in this court after the following procedural history: In August 1967, writ of error was issued out of this court in case No. 23157, entitled Bill Dreiling Motor Company v. St. Paul Fire & Marine Insurance Company. In December of 1969, pursuant to orders issued out of this court, the attorneys of record in the Supreme Court case were advised that on January 2, 1970 their writ of error would be transferred to the newly created Court of Appeals for determination. Petitioner filed what was designated 'Objections to Transfer of Action.' This court overruled the objection on January 2, 1970, and the case was lodged in the Court of Appeals and assigned a new docket number in that court. Then followed the quo warranto petition on the ground that the statute creating the Court of Appeals and creating the jurisdiction vested therein is unconstitutional. The Court of Appeals and the judges thereof have appeared here through the office of the Attorney General and made answer to the show cause order.

I.

The sections of the statute attacked as being unconstitutional are 1969 Perm.Supp. C.R.S. 37--21--2, 37--21--8, and 37--21--10(2)(b) appearing in the Session Laws of 1969 and commencing at page 265 of that volume.

The pertinent sections of the act creating the Court of Appeals and providing for the division of jurisdiction on appeal between the new court and the Supreme Court and establishing the manner of review from the Court of Appeals to the Supreme Court read as follows:

'37--21--2. Jurisdiction.--(1)(a) Any provision of law to the contrary notwithstanding, the court of appeals shall have initial jurisdiction over appeals from final judgments of the district courts, superior courts, the probate court of the city and county of Denver, and the juvenile court of the city and county of Denver, except in:

(b) Criminal cases tried initially in district court and contributing to delinquency cases, pursuant to section 22--1--4(2)(b), C.R.S. 1963, as amended, tried initially in the juvenile court of the city and county of Denver;

(c) Cases in which the constitutionality of a statute, a municipal charter provision, or an ordinance is in question;

(d) Cases concerned with decisions or actions of the public utilities commission;

(e) Water cases involving priorities or adjudications;

(f) Writs of habeas corpus;

(g) Cases appealed from the county court to the district court or superior court, as provided in section 37--15--10;

(h) Summary proceedings initiated under chapter 49, C.R.S. 1963, as amended.

(2) The court of appeals shall have initial jurisdiction to review awards or actions of the industrial commission, as provided in article 14 of chapter 81, C.R.S. 1963, and article 5 of chapter 82, C.R.S. 1963, as amended.

(3) The court of appeals shall have authority to issue any writs, directives, orders, and mandates necessary to the determination of cases within its jurisdiction.'

'37--21--8. Supreme court review.--(1) Before application may be made for writ of certiorari, as provided in this section, application shall be made to the court of appeals for a rehearing as provided by supreme court rule.

(2) Within thirty days after a rehearing has been refused by the court of appeals, any party in interest who is aggrieved by the judgment of the court of appeals may appeal by application to the supreme court for a writ of certiorari.'

'37--21--10(2)(b). Any case within the jurisdiction of the court of appeals which was filed in the supreme court prior to the effective date of this article may be transferred to the court of appeals by the supreme court.'

The constitutional provisions alleged to be violated by the cited statutory section is Article VI, section 2(2) as follows:

'(2) Appellate review by the supreme court of every final judgment of the district courts, the probate court of the city and county of Denver, and the juvenile court of the city and county of Denver shall be allowed, and the supreme court shall have such other appellate review as may be provided by law. * * *'

The petitioner construes this constitutional provision to require direct appellate review by the supreme court, and argues that the writ of certiorari provided for does not comply with the constitutional mandate.

The question before us is easily stated: 'Is review by certiorari appellate review?' If it is then C.R.S. 1963, 37--21--8(2), 37--21--10(2)(b), and Article VI, section 2(2) of the constitution are not in conflict.

There is no question that certiorari is now, and always has been, a recognized form of appellate review. Indeed, under the common law, the only comparable types of review available were by writ of error, writ of false judgment, or writ of certiorari. The form of certiorari review this court will maintain over the Court of Appeals is quite similar to the common law review by certiorari, and distinguishable from the limited ancillary type of certiorari in existence in past years under R.C.P.Colo. 106(a)(4); 4 C.J.S. Appeal and Error § 8. Certiorari is presently recognized as a form of appellate review. DeGroot v. Sheffield, 95 So.2d 912 (Fla.); 14 C.J.S. Certiorari § 2. Other courts have agreed with this. Although the statement is dictum, the Missouri court, in State ex rel. Bentley v. Reynolds, 190 Mo. 578, 89 S.W. 877, has said:

'* * * We know what is meant when it is said that an appellate court is to review the action of a court of original jurisdiction. It refers to the action of any appellate court concerning a case that is before it Either on appeal, writ of error, or certiorari. * * *.

(Emphasis added.)

See also, State ex rel. Massman Construction Co. v. Shain, 344 Mo. 1003, 138 S.W.2d 649.

In Orlando Transit Co. v. Florida Railroad and Public Utilities Commission, 160 Fla. 795, 37 So.2d 321, it is said: 'To the extent that it involves the review of the proceedings of an inferior court certiorari is an appellate proceeding, * * *.'

The petitioner contends that certiorari is not a writ of right. This argument begs the question of whether our procedure contravenes the constitutional provisions. The Petition provided in Colorado Appellate Rules for a writ of certiorari is an Application of right. The study by this court of that petition and of the record on appeal to determine whether to grant or deny the petition constitutes a review. As to petitions for certiorari which are denied, we hold that this review is 'appellate review' as that term is used in the Colorado constitution.

In short, then, if the framers of Article VI, section 2(2) had intended that the Supreme Court review all judgments by writ of error or by appeal exclusively, they would have indicated their intent in so many words. The mode of granting such review was not prescribed. It can encompass any form of appellate review, including certiorari. The procedure established in 37--21--8(2), 37--21--10(2)(b) and in C.A.R. 50 through 57 clearly provides for appellate review in this court.

II.

The second contention made by petitioner is that C.R.S. 1963, 37--21--10(2)(b) is void and inapplicable to petitioner...