Greenwood Cemetery Land Co. v. Routt

• Decision Date: 01 February 1892
• Citation: 28 P. 1125,17 Colo. 156
• Parties: GREENWOOD CEMETERY LAND CO. v. ROUTT et al., Land Commissioners.
• Court: Colorado Supreme Court

28 P. 1125

17 Colo. 156

GREENWOOD CEMETERY LAND CO. v. ROUTT et al., Land Commissioners.

Supreme Court of Colorado

February 1, 1892

Appeal from district court, Arapahoe county.

Application of the Greenwood Cemetery Land Company for a writ of mandamus to John L. Routt, Edward J. Eaton, Joseph H. Maupin, and N. B. Coy, as state land commissioners, to compel them to receive certain moneys tendered as a balance of the purchase price of certain land. Judgment dismissing the petition. Plaintiff appeals. Reversed.

The other facts fully appear in the following statement by ELLIOTT, J.:

This was an application in the district court, by the Greenwood Cemetery Land Company, for a writ of mandamus. Upon the filing of the petition, an alternative writ, reciting, in substance, the allegations of the petition, was issued directed to 'John L. Routt, Edward J. Eaton, Joseph H Maupin, and N. B. Coy, comprising the state board of land commissioners of the state of Colorado, and Matt France register of the state board of land commissioners.' The command of the writ was, in substance, that said defendants Routt, Eaton, Maupin, and Coy, as the state board of land commissioners, receive from petitioner, the cemetery company the money tendered to them as balance of the purchase price for the land described in the petition and writ, and that they execute unto the petitioner a patent from the state of Colorado for said land, and that said Routt, as governor, do sign the said patent, and that said France, as register, do countersign said patent, and place thereon the seal of the state board of land commissioners, and deliver the same unto the petitioner, or that said defendants show cause before the court on, etc., why they have not done the acts so commanded. The defendants made return or answer in which, among other things, they plead: 'That plaintiff ought not to have and maintain this action against them, because said court has no jurisdiction to compel the defendant Routt, by mandamus or otherwise, to sign the patent, as prayed for.' The portion of the answer thus set forth was considered and treated by the court and the parties to said cause as a demurrer to the petition. Upon consideration of the issue thus presented, it was 'adjudged and determined by the court that it has no power, authority, or jurisdiction to compel the said Routt, as governor of the state of Colorado, to sign a patent for land, as prayed for in and by the said petition, and that the said Routt, as governor of the state of Colorado, is not subject to mandamus issuing from this court, by reason of the fact that he is the head of the executive department of the state of Colorado.' The petition was thereupon dismissed. To review this judgment, plaintiff brings this appeal.

Syllabus by the Court

1. The writ of mandamus may, in a proper case, be allowed to command action, but not to control discretion.

2. The legislative, executive, and judicial departments of the state government are distinct from each other, and, so far as any direct control or interference is concerned, are independent of each other; but the powers of a single department are not absolute, and may be incidentally affected by the action of another department.

3. The supreme executive power of the state is vested in the governor. The legislative power is vested in the general assembly. The judicial power is vested in the courts; and they are charged with the responsibility of trying and determining suits and controversies affecting both public and private rights, and, for this purpose, are invested with the authority of construing the constitution and laws of the state.

4. The action of the governor in the exercise of his political or governmental powers, whether the same are conferred by the constitution or by statute, cannot be controlled by mandamus.

5. If, in the exercise of some power neither political nor essentially governmental, the law specially enjoins upon the governor the performance of some particular act, under circumstances in which he has no discretion, and he refuses to perform the act, and by his refusal a party is deprived of his property or other legal right, the injured party may have relief by mandamus against the governor, if there be no plain, speedy, and adequate remedy in the ordinary course of law.

6. The state board of land commissioners consists of four members of equal authority. Their discretion is to be exercised collectively, and is not included in the supreme executive power, which is vested alone in the governor.

7. Where public land has been regularly sold by the state land board, the purchaser, or his assignee in good faith, is entitled to a patent therefor, to be signed by the governor, and otherwise attested as the law directs, whenever such purchaser or assignee has paid or tendered the full purchase price, with lawful interest, as the law provides, and has otherwise complied with all the conditions of the purchase; and, under such circumstances, mandamus is an appropriate remedy, in case of a refusal to execute and deliver the patent.

Hartzell & Patterson and H. Riddell, for appellant.

Joseph H. Maupin, Atty. Gen., and H. H. Babb, for appellees.

ELLIOTT, J., ( after stating the facts.)

The defendants, by a separate and distinct plea incorporated in their answer, challenged the jurisdiction of the court to issue the writ of mandamus against the governor. Such plea, being in the nature of a demurrer to the petition, was, by consent of the parties and the court, treated as raising a question of law, to be considered and disposed of in advance of any trial that might become necessary upon other matters of defense stated in the answer. Upon the hearing the demurrer was sustained, and the writ of mandamus denied, solely on the ground of a want of jurisdiction in the court to issue the writ against the governor. No other matter contained in the answer was considered or determined by the district court. The review upon this appeal must, accordingly, be limited to the technical legal question of jurisdiction. It may be here remarked that the jurisdictional question could not have been avoided by applying in the first instance to this court for the exercise of its original jurisdiction, inasmuch as, by the express terms of the constitution, (article 6, § 1,) the district courts are invested with original jurisdiction of all causes, both at law and in equity. It is an elementary rule that a demurrer admits the truth of all allegations of fact in the pleading demurred to, so far as the same are well pleaded. No objection, other than the jurisdictional one above stated, having been taken to the sufficiency of the petition, either as to matters of form or substance, we are justified in assuming, for the purposes of this opinion, that the facts stated in the petition are not only true, but that they are sufficient, in substance, to entitle the petitioner to relief by mandamus, but for the fact that such relief is asked against the governor. The course of proceeding adopted for disposing of this litigation in the district court virtually compels this court to decide whether the writ of mandamus may issue against the governor, under the circumstances set forth in the petition, as though no defense had been interposed upon the merits. The question is an exceedingly delicate one, and it is with reluctance that we undertake its decision. Nevertheless, as the question is properly presented by the record, it is unquestionably the duty of this court to pass upon and determine the same according to our best judgment. The isolated form in which the question is presented will at least relieve us from the charge of obiter dictum, or of delivering an unnecessary opinion upon the subject.

Under what circumstances, if at all, may the action of the chief executive of the state be controlled by mandamus or other judicial process? This question has been a fruitful source of controversy in several of our sister states. Some phases of the question are easy, and up to a certain point the decisions are in substantial accord. As to other phases the most diverse views have been expressed, and it would be exceedingly difficult to trace the current of judicial opinion, or to determine the weight of authority. After much consideration, without commenting at length upon the various decisions, and without attempting to reconcile authorities, we shall briefly state our own views, and endeavor to place the decision upon those principles or right and justice recognized and established by our free constitutional government.

It is scarcely necessary to say that the official discretion of the governor cannot be controlled by mandamus. This court has repeatedly announced the general rule that while the writ may, in a proper case, be allowed to command action it will not be used to control discretion. Union Colony v. Elliott, 5 Colo. 373; People v. District Court, 14 Colo. 396, 24 P. 260; People v. Graham, 16 Colo. 347, 26 P. 936. The authorities are uniform that the courts cannot by mandamus control the action of the governor in the exercise of any of his political or governmental powers, whether the same are conferred by the constitution or by legislative enactments. In the exercise of political and governmental powers the governor is independent, or, at most, is answerable only to the high court of impeachment, or, as in the case of other elective officers, to the people. Mechem, Pub. Off. § 954 et seq. But may not the governor be invested with certain powers and duties in the exercise of which, under certain circumstances, he may have no discretion,--powers and duties which are neither political nor governmental in their nature; powers and duties which might have been devolved upon some...