Hughes v. Felton

• Decision Date: 01 June 1888
• Citation: 11 Colo. 489,19 P. 444
• Parties: HUGHES v. FELTON.
• Court: Colorado Supreme Court

19 P. 444

11 Colo. 489

HUGHES v. FELTON.

Supreme Court of Colorado

June 1, 1888

Commissioners' decision. Error to superior court of Denver.

Wells, Smith & Macon, for plaintiff in error.

F J. Mott, for defendant in error.

DE FRANCE, C.

Felton was plaintiff in the court below, and obtained a judgment by default against Hughes, the defendant. Hughes afterwards moved for a vacation of said judgment, but his motion was denied. The denial of said motion is assigned for error. It is not permissible, in a case brought here by writ of error to assign error on an order of court made after final judgment. Polk v. Butterfield, 9 Colo. 325, 12 P. 216.

The only other point relied upon for a reversal is that the superior court is no court, and had no jurisdiction as such to pass judgment in the case. To support this proposition, it is claimed that the act of the legislature approved February 10, 1883, under and by virtue of which the superior court was organized, is nugatory. The objection made to such act is not to the mode of its passage, nor to subject-matter apparent on the face thereof; but because, as it is claimed, the legislature which enacted it was not a legal or constitutional body. In the case of People v. Supervisors, 8 N.Y. 317, it is said that, in order to take advantage of an objection of this kind, it should be set forth in the pleadings, so as to afford the adverse party an opportunity of controverting the same. But, however this may be, there is another matter which is fatal to the claim here made. Article 5, § 10, of the state constitution, referring to the legislature, provides that each house 'shall judge of the election and qualification of its members.' The power thus vested and conferred is exclusive. The courts cannot interfere with its exercise, or review the decision of either house, acting under and in pursuance of said power. Such decision is conclusive. People v. Mahaney, 13 Mich. 481; State v. Gilmore, 20 Kan. 551; Cooley, Const. Lim. 133, 624. To maintain their main proposition, that the superior court is not a court, counsel for plaintiff in error assume, as a basis for their argument, that the legislative apportionment act of 1881 is unconstitutional. By an oversight or omission of the legislature, this apportionment act contains no provision whereby the electors of Dolores county might have a voice in the election of senators and representatives; and for this reason it is that said act is claimed to be in contravention of the constitution. Then counsel say, and perhaps it is a fair and legitimate presumption, that all of the members of the legislative assembly of 1883, except the senators who held over, were chosen under that act, or from districts as constituted by that act, at the general election held in 1882. The conclusion is then drawn that the members of the legislature thus elected, were not legally elected; and also the further conclusion, that the legislative assembly of 1883, composed of a senate, one-half of whose members were so elected, and of a house, of which all the members were so elected, was an illegal and unconstitutional body; and that, as a consequence, no act passed by it could become a valid law. The statute under which the superior court of the city of Denver was organized, is one of the measures of that legislature. This is the process of reasoning advanced by counsel in support of the assignment of error under consideration. From what has already been said, it is plain to be seen that a determination of the main proposition contended for involves a decision of questions which this court has no authority to decide, and which it is prohibited from deciding by an express provision of the constitution lodging such power elsewhere. The members of the legislature thus assailed, met at the time and place provided therefor by law, and then and there organized the two houses in the manner required by law. In doing this, each house necessarily judged of...