Friesen v. People ex rel. Fletcher
| Decision Date | 22 March 1948 |
| Docket Number | 15713. |
| Citation | 118 Colo. 1,192 P.2d 430 |
| Parties | FRIESEN et al. v. PEOPLE ex rel. FLETCHER et al. |
| Court | Colorado Supreme Court |
Error to District Court, Prowers County; David M. Ralston, Judge.
Action by the People of the State of Colorado, on relation of B. H Fletcher and others, against H. N. Friesen and others, and Webb Soil Conservation District, to require respondents to show what right or authority they claimed to be members of such board or to exercise the power and perform duties of such offices, and to have proceedings creating district decreed void by reason of certain alleged irregularities therein. To review judgment in favor of relators, the respondents bring error.
Affirmed.
Thornton H. Thomas, Jr., of Burlington, for plaintiffs in error.
Arthur C. Gordon and J. Woodson Railey, both of Lamar, for defendants in error.
This is an action in the nature of quo warranto brought by the people of the state of Colorado upon the relation of B. H. Fletcher and others, against respondents as members of the Board of Supervisors and Board of Appeals of the Webb Soil Conservation District, to require respondents to show by what right or authority they claimed to be members of such boards or to exercise the power and perform the duties of such offices. The relators also pray that the proceedings creating said district be decreed to be null and void and of no force or effect by reason of certain alleged irregularities therein. The trial court found in favor of relators and against the respondents, and the case is here on writ of error to review the judgment.
In the respondents' brief, it is said that 'the case was actually tried and decided upon the following issues:
It is contended by respondents with respect to point (a) that the trial court had no jurisdiction of the action because, as is said, the Supreme Court has original jurisdiction to try quo warranto proceedings under the Constitution, and consequently, 'the district court can have no jurisdiction because courts of concurrent jurisdiction cannot have the right of review of decisions of each other.'
The distinction between original quo warranto proceedings in thsi court and the district court was fully discussed by us in People ex rel. Graves v. District Court, 37 Colo. 443, 86 P. 87, 92 P. 958, 13 L.R.A.,N.S., 768. It can serve no useful purpose to repeat here what we there said. We definitely held that article VI, section 11, of the Constitution conferred jurisdiction on the district court of all causes of action including quo warranto, and that section 3 of article VI confers upon this court the power to issue high prerogative writs of quo warranto with the authority to hear and determine. It is likewise clear from these provisions that the jurisdiction of both courts being created by the Constitution, the jurisdiction of each was necessarily excluded from the other. The rules involved are discussed in Wheeler v. Northern Colorado Irr. Co., 9 Colo. 248, 11 P. 103; Clark v. Utilities Comm., 78 Colo. 48, 239 P. 20; People ex rel. v. Tool, 35 Colo. 225, 86 P. 224, 229, 231, 6 L.R.A.,N.S., 822, 117 Am.St.Rep. 198.
The right to bring quo warranto proceedings in the district court has many times been recognized under circumstances similar to those here involved. Norton v. People ex rel., 102 Colo. 489, 81 P.2d 393; Harris v. People ex rel., 102 Colo. 496, 81 P.2d 383; People ex rel. v. Newton, 106 Colo. 61, 101 P.2d 21; People ex rel. v. Mosco, 114 Colo. 464, 167 P.2d 949. In each of the above cases the district court properly entertained jurisdiction, and in each, this court exercised its constitutional right of review.
Respondents, however, cite People ex rel. v. Letford, 102 Colo. 284, 79 P.2d 274, 278, as authority for their contention that this court, under the Constitution should assume original jurisdiction. That case was brought by the attorney general in his official capacity, and in the decision we pointed out that, 'this issue requires a judicial determination of the validity and constitutionality of the Water Conservancy Act,' and that such act 'invites such a proceeding and fixes the time within which the action may be brought * * *.' The act to which reference is made expressly provides:
S.L. '37, c. 266, § 7.
By the terms of the conservancy act involved in the above case, the judgment of the district court was made final and conclusive as to 'all persons except the State of Colorado' from which judgment no writ of error would lie except 'in an action in the nature of a writ of quo warranto, commenced by the Attorney General.' The act precluded the bringing of such suit by the people on the relation of individuals. From an examination of the act as a whole, in the light of our construction thereof in the above case, it is obvious that the legislature intended that the validity of the proceedings in the district court could not be questioned, except by the high prerogative writ of quo warranto authorized by section 3, article VI, of the Constitution.
The present action was brought upon the relation of individuals, as above mentioned, and not by the attorney general, the duly constituted legal representative of the people. Neither has the State Soil Conservation Board appeared or asked to intervene herein or in any manner challenged the trial court's jurisdiction. No official of the state has asserted herein that the sovereignty of the state or its prerogatives are involved or that the liberties of the people are affected. This proceeding is, as the trial court properly held, primarily between individual citizens or groups entirely local in character, and it cannot injuriously affect the people of the state at large.
We conclude that the writ in the nature of quo warranto issued in the instant case was not one within the intent of the above provision of the Constitution, and that the district court had full jurisdiction to hear and determine the issues herein.
With respect to point (b) concerning the sufficiency of the petition to initiate the proceedings for the formation of the district, the pertinent portion of section 5 of the act, S.L.1941, c. 203, provides:
'If in the opinion of the state board the petition and the accompanying map or plat are sufficient and it appears to the state board that the organization of the proposed district is feasible and practicable and is required for the preservation of the health, prosperity and welfare of the State of Colorado and its people, then the state board shall proceed' with the election in a manner thereafter set forth.
By the above section, the state board was granted authority to determine, ex parte, the sufficiency of the petition. There is no provision for notice or hearing on the validity of the petition. The act simply provides that if the board finds certain facts to exist, it shall proceed as thereafter set forth. Having found the petition sufficient and the required facts to exist, it was mandatory, under the act, that the board fix the time and place of and make all other arrangements concerning, the election. There is no provision for a review of the board's decision on sufficiency of the petition. The findings of the board necessarily became final, in the absence of a review. Rule 106(a)(4), R.C.P.Colo., provides a plain, speedy and adequate remedy for reviewing the decision of the board as to the sufficiency of the petition, by virtue of which rule the district court is authorized to determine whether or not the board had jurisdiction or abused its discretion.
We have, in addition to the remedy afforded by the rule, approved an action to enjoin the placing of illegal measures upon ballots. Elkins v. Milliken, 80 Colo. 135, 249 P. 655, cited in note, 70 A.L.R. 733.
Simple justice requires that the relators should have had the determination of the board promptly reviewed and that they could not sit idly by until all the arrangements for the election had been made, the expenses thereof incurred, notices prepared and published, ballots printed, polling places provided for, the election actually held, returns canvassed, results certified, an adjourned election held, and the officers of the district elected to manage its affairs, without action of any kind. After waiting almost four months and when all of the above things have been done, relators are not in a position to question the sufficiency of the petition or the validity of the findings of the board.
Such is the effect of our holding in Denver v. Londoner, 33 Colo. 104, 107, 80 P. 117, 118, where we said, inter alia:
...
To continue reading
Request your trial
-
People ex rel. Wilson v. Blake, 16981
...or abused its discretion, since Rule 106(a)(4), R.C.P.Colo., 'provides a plain, speedy and adequate remedy'. Friesen v. People ex rel., Fletcher, 118 Colo. 1, 6, 192 P.2d 430, 433. Notwithstanding similarity of factual background to that portrayed in the Enos case, counsel for relators seek......
-
Churning v. Staples
...the parties potentially damaged. The defendant cannot complain of an error injurious only to his adversary. Friesen v. People ex rel. Fletcher, 118 Colo. 1, 192 P.2d 430 (1948); Chicago, Rock Island & Pacific Ry. v. Hayes, 49 Colo. 333, 113 P. 315 While defendant concedes in his brief that ......
-
Kidd v. Clark County Equalization Bd.
... ... In O'Brien v. People, 118 Colo. 58, 192 P.2d 428 (1948), the appellant was found guilty in a ... ...
-
Enos v. District Court of First Judicial Dist. In and For Arapahoe County
...electors have spoken? Is the petition in such a case functus officio? (3) Under our decision in the case of Friesen v. People, ex rel. Fletcher, 118 Colo. 1, 192 P.2d 430, is the relator estopped from maintaining this Generally, these questions were presented to the trial court, which, afte......
-
Rule 106 FORMS OF WRITS ABOLISHED.
...court is authorized to determine whether or not the board had jurisdiction or abused its discretion. Friesen v. People ex rel. Fletcher, 118 Colo. 1, 192 P.2d 430 (1948). Where it is contended that the county court was without or exceeded its jurisdiction, or abused its discretion, section ......
-
CONSTITUTION OF THE STATE OF COLORADO
...being created by the constitution, the jurisdiction of each was necessarily excluded from the other. Friesen v. People ex rel. Fletcher, 118 Colo. 1, 192 P.2d 430 (1948). Jurisdiction includes extraordinary and remedial writs. The jurisdiction conferred by this section is broad enough to in......
-
CONSTITUTION OF THE STATE OF COLORADO
...being created by the constitution, the jurisdiction of each was necessarily excluded from the other. Friesen v. People ex rel. Fletcher, 118 Colo. 1, 192 P.2d 430 (1948). Jurisdiction includes extraordinary and remedial writs. The jurisdiction conferred by this section is broad enough to in......
-
ARTICLE VI JUDICIAL DEPARTMENT
...being created by the constitution, the jurisdiction of each was necessarily excluded from the other. Friesen v. People ex rel. Fletcher, 118 Colo. 1, 192 P.2d 430 (1948). Jurisdiction includes extraordinary and remedial writs. The jurisdiction conferred by this section is broad enough to in......