Hall v. City and County of Denver

• Decision Date: 09 February 1948
• Docket Number: 15880.
• Citation: 190 P.2d 122,117 Colo. 508
• Parties: HALL et al. v. CITY AND COUNTY OF DENVER et al.
• Court: Colorado Supreme Court

190 P.2d 122

117 Colo. 508

HALL et al. v. CITY AND COUNTY OF DENVER et al.

No. 15880.

Supreme Court of Colorado, en Banc.

February 9, 1948

Rehearing Denied March 1, 1948.

Error to District Court, City and County of Denver; Harold M Webster, Judge.

Proceeding in the nature of mandamus by A. W. Hall and others against the City and County of Denver, a municipal corporation, and others. To review an adverse judgment, plaintiffs bring error.

Judgment affirmed.

HILLIARD J., dissenting.

Geo. F. Dunklee, Edward V. Dunklee, and David V Dunklee, all of Denver, for plaintiffs in error.

J. Glenn Donaldson, Malcolm Lindsey, and Wayne D. Williams, all of Denver, for defendants in error.

JACKSON Justice.

Plaintiffs in error, as plaintiffs in the trial court, instituted a proceeding in the nature of mandamus to review the action of the Election Commission of the City and County of Denver in refusing to approve and certify a petition for the submission of an initiated measure to the electorate at the next ensuing city election. The complaint alleges that the proposed initiated measure undertakes to declare what is known as the 'Old Court House Square' in Denver to be a public park. Motions to dismiss and to strike were filed by all of the defendants. The trial court sustained the motions, but afforded plaintiffs an opportunity to amend; the latter, however, elected to stand upon their complaint as drawn; judgment of dismissal was duly entered, to review which, plaintiffs bring the case here by writ of error. The case was docketed here on the 31st day of March, 1947; the reply brief was filed on December 29, 1947. The case was then immediately set for oral argument, which was had on January 5, 1948.

The record as presented here, therefore, consists merely of the above-mentioned complaint of plaintiffs, motions to dismiss and strike filed by defendants, and the trial court's order and opinion sustaining the motions to dismiss and to strike.

From the complaint it appears that the circumstances giving rise to this case began when plaintiffs filed with the Election Commission of the City and County of Denver their petition containing the names of 5,091 electors, which they allege is more than the required five per cent in number of the voters in the last preceding municipal election.

The Election Commission, as its first ground for not approving and certifying the petition, held 3,719 of the signatures to be invalid, leaving 1,372 signatures of electors presumably valid--the latter number being considerably less than the required five per cent. Plaintiffs in their complaint, alleged that this adverse ruling of the Election Commission was made after a hearing at which both petitioners and certain protestants to the petition appeared; that the protest filed with the commission was invalid; that the hearing determining whether certain petitioners were valid electors was conducted improperly and that the commission erred in following the testimony of a certain handwriting expert and also in throwing out names of certain married women who had signed as petitioners using their respective husbands' complete names preceded by the word 'Mrs.' rather than using their respective Christian names. The complaint appears to make no reference to the second ground upon which the Commission held the petition invalid. The record of the proceedings Before the commission was not Before the trial court, nor is it Before us.

The trial judge in his opinion sets forth the reason for dismissing the complaint as follows:

'This action was commenced by the filing of a complaint (in mandamus) wherein the plaintiffs allege numerous errors and mistakes were committed by the Election Commission. There are no allegations therein charging that Commission or its members with fraud, arbitrary or capricious conduct. Plaintiffs pray that the findings of the Commission be reviewed by this Court.

'Motions to dismiss and to strike were filed on behalf of all defendants, and the matter is now Before this Court on those motions.

'Mandamus is a discretionary writ. It lies where there is a clear legal duty to perform a certain thing, or where there is shown an actual failure to perform that duty. It cannot be used to control discretion, nor to correct errors committed in the exercise of discretion, nor to compel a quasi-judicial tribunal to exercise its discretion in a particular way.

'The Election Commission is a quasi-judicial tribunal, empowered by Sec. 276 of the Charter of the City and County of Denver to hear and determine, upon protest, the sufficiency of the petitions referred to in the complaint. In accordance with said Sec. 276, the findings of the Election Commission as to the sufficiency of any petition shall not prevent the same being reviewed by any state court of general jurisdiction. Said Commission, after hearings, exercised its discretion, entered its written findings, and took all action required by law.

'This court is a court of review and not for trial de novo. The plaintiffs did not proceed in accordance with Rule 106(4), Rules of Civil Procedure, and therefore the matter is not Before the court for review. Accordingly, both motions to dismiss are sustained.'

We believe that the trial court was justified in drawing the distinction between the writ of mandamus and Rule 106(4), R.C.P. Not only was the complaint in this case entitled a complaint in the nature of mandamus, but paragraph 14 of the complaint definitely states that 'the plaintiffs elect to proceed in a suit in mandamus'; and at the conclusion of paragraph 15 there is a prayer that the 'Commission be ordered to certify to the clerk of the City Council that petition as a whole contains the genuine names of electors of more than five per cent. (5%) of the 70,280 votes for mayor at the general election of the City and County of Denver, held in May 1943.' It should further be emphasized that Before the court actually ordered the complaint dismissed, plaintiffs were given several opportunites to amend and seek review of the Election Commission's actions under Rule 106(4), R.C.P. This case, therefore, is not comparable with Hawkins v. Hunt, 113 Colo. 468, 160 P.2d 357, where we treated a complaint in mandamus as coming under Rule 106(4), R.C.P., and disposed of the case accordingly. In the instant case counsel for plaintiffs definitely rejected their right to amend and proceed under Rule 106(4), R.C.P.; consequently should we rule in this case that they were proceeding under that rule we would be forcing upon them a remedy which they have already refused in the trial court and which they here assert in written briefs and oral argument is inapplicable. We can only interpret the record, therefore, as one in which they insist that they have a right to what would correspond under the old pleadings to a writ of mandamus, which, as above indicated, would entitle them, if granted, to a new trial on the merits rather than to have a district court act as a court of review of the proceedings of the Election Commission.

It may be argued that special forms of writs, including mandamus have been abolished under the first paragraph of Rule 106, R.C.P., and that any set of circumstances entitling a litigant to the issuance of such a writ would come under that rule. We have recently held, however, in North Poudre Irrigation Co. v. Hinderlider, 112 Colo. 467, 474, 150 P.2d 304, 308: 'While Rule 106, Rules of Civil Procedure Colo., pertaining to remedial writs, 'abolishes the the special form of pleading,' writ and name of the remedy theretofore known as mandamus, the substantive aspects of such proceedings are preserved, and relief of the same nature as was formerly provided in mandamus actions may be granted in accordance with precedents established under the old...