Ex parte Stout
| Decision Date | 01 April 1881 |
| Citation | 5 Colo. 509 |
| Parties | EX PARTE JAMES D. STOUT. |
| Court | Colorado Supreme Court |
Under the constitution criminal courts may be created by "local or special" acts, but their organization jurisdiction, and practice must be provided for by general laws of uniform operation throughout the state.
PETITION for writ of habeas corpus.
Messrs BRAZEE & SHAFORTH, for petitioner.
Mr. I E. BARNUM, for respondent.
This is a petition for a writ of habeas corpus presented by James D. Stout, who states that Charles W. Wright, pretending to act as judge of the criminal court of Arapahoe county, on the 18th day of March, 1881, caused the petitioner to be brought before him, and tried before a jury, upon an indictment charging the petitioner with the crime of petit larceny. That the jury returned a verdict of guilty, and that afterwards, on the 26th day of March, said judge sentenced the petitioner upon said verdict, to thirty days' imprisonment in the county jail of Arapahoe county.
The petition charges, among other things, that the act establishing the criminal court of Arapahoe county is unconstitutional and void.
The sheriff and jailer of said county return as the cause of imprisonment, that they hold the petitioner in custody under and by virtue of a mittimus issued out of and under the seal of the criminal court of Arapahoe county.
The controlling question presented by the petition and return to the writ is, whether the prisoner is in custody by virtue of process from a court legally constituted.
Under the provisions of section 3 of our habeas corpus act, (G. L. p. 497,) if it appears on the hearing that the process by virtue of which the prisoner is restrained of his liberty has been issued by a person unauthorized to issue the same, or, if it appears that he is in custody by virtue of process from a court not legally constituted, the prisoner may be discharged.
If the act creating this criminal court, providing for its organization, establishing its jurisdiction and reglating its practice is unconstitutional, the judgment is void, and the prisoner is illegally deprived of his liberty. Herrick v. Smith, 1 Gray, 49.
Section 24, article 6, of the Constitution, which provides for the creation of criminal courts, is as follows: 'The General Assembly shall have power to create and establish a criminal court in each county having a population exceeding fifteen thousand, which court may have concurrent jurisdiction with the district courts in all criminal cases not capital; the terms of such courts to be as provided by law.'
Under this section two separate local or special acts were passed at the recent session of the legislature, one creating and establishing a criminal court for Arapahoe county, and the other, a similar court for Lake county.
We were called upon recently to consider the constitutionality of that portion of the latter act which provided for the appointment of a judge, and for filling vacancies in said office. But the question of the constitutionality of the act as a whole was not raised and could not be properly considered. The validity of the Arapahoe county act is now challenged, on the ground that it violates two sections of the Constitution, viz: Section 25 of article 5, and section 28 of article 6. The former provides that 'The General Assembly shall not pass local or special laws in any of the following enumerated cases; that is to say, * * * regulating the practice in courts of justice * * * providing for changes of venue in civil or criminal cases, * * * summoning or impaneling grand or petit juries, * * * in all other cases where a general law can be made applicable, no special law shall be enacted.'
The latter section is as follows: 'All laws relating to courts shall be general and of uniform operation throughout the State, and the organization, jurisdiction, powers, proceedings and practice of all courts of the same class or grade, so far as regulated by law, and the force and effect of the proceedings, judgments and decrees of such courts severally shall be uniform.'
Three principal propositions are relied upon to maintain the validity of the act:
First. That the constitutional provision, which authorizes the creation of criminal courts in counties having a population exceeding 15,000, does not contemplate that every county having the requisite population shall have such a court, but that courts of this character may be established from time to time, in the discretion of the General Assembly, as necessity or expediency may require.
Second. That a general act cannot be made applicable for the purpose.
Third. That the question whether a general law can be made applicable is exclusively a question for the legislature, and its discretion concerning the same is not subject to review by the courts.
There is great force in the first proposition, and we are of the opinion that the section of the constitution which provides for the creation of criminal courts is susceptible of the construction stated. It is a well known fact that there is more crime, hence a greater necessity for courts, where large bodies of people are thrown together, as in populous cities, than where the people are distributed over extensive areas of land, as in the agricultural districts, or even in the smaller towns and villages throughout the country.
It is not every county possessing the requisite population which would need a criminal court; perhaps but a small proportion of such counties would either require or desire such a court. In this view of the subject the power of deciding when such necessity exists, may perhaps be properly left to legislative discretion. It is certainly true that a general law creating and establishing criminal courts in all counties possessing the requisite population, would in many instances prove not only unnecessary, but burdensome to the people as well.
But it does not follow that if the legislative assembly be invested with power to create criminal courts by local or special acts from time to time, as occasion may require, that it may also by the same, or acts of like character, determine the manner of organization, the extent of jurisdiction, or prescribe the practice of such courts.
This brings us to the consideration of the second and third propositions above stated, which may be considered together viz.:...
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...created by statute, and when the statute creating it is unconstitutional, there is no de jure court or office, as the case may be (Ex parte Stout, 5 Colo. 509), and under such circumstances we have highest authority for the view that there can be no de facto court or office (Norton v. Shelb......
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Bd. of Cnty. Comm'rs of Day Cnty. v. State
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Rogers v. People
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