In re Allison

• Decision Date: 06 December 1889
• Citation: 22 P. 820,13 Colo. 525
• Parties: In re ALLISON.
• Court: Colorado Supreme Court

22 P. 820

13 Colo. 525

In re ALLISON.

Supreme Court of Colorado

December 6, 1889

Original application for habeas corpus.

Charles Allison was convicted in the district court of Conejos county, on four indictments for highway robbery. Sentences were duly pronounced on each of the four convictions whereupon he applied for a writ of habeas corpus.

H. B. O'Reilley, for petitioner.

The Attorney General and H. Riddell, for the People.

HELM C.J.

The most serious question presented in the case at bar rests upon a challenge to the legal existence of the trial court itself. If there was no lawful court, the pretended trial and judgment were absolutely void, and it would be idle to argue that a conviction, under such circumstances, could not be inquired into upon habeas corpus. Moreover, our habeas corpus statute implies clearly that the court itself must be lawfully constituted. And were there doubt concerning the right to inquire, by this proceeding under the law and decisions elsewhere, into the legal existence of the court passing sentence, such doubt would be dispelled by the statute. Besides, the jurisdiction mentioned has already been entertained by this court. Ex parte Stout, 5 Colo. 509. The foregoing observations must not be understood, however, as applying to the case of de facto judges or other court officers. The district court is created by the constitution, and its jurisdiction is therein defined. The office of district judge is in like manner established, and the title of the incumbent who tried the case at bar is not questioned. The statute organizing the sixth judicial district, in which Conejos county is situate and providing for the terms of court therein, has never been challenged as unconstitutional, imperfect, or ineffective. Relator contends that because his trial was had at the town of Conejos, three-fourths of a mile distant from the town of Guadaloupe, the court was no court, and the conviction and judgment are absolute nullities. The constitution is silent as to the place within the county where the district court is to perform its appointed work. The statute ordains that it shall be held at the 'county-seat;' but the 'county-seat,' accurately speaking, is something separate and apart from the place where it is located, for both the constitution and statute provide for its removal from one place to another. And the term, as in common parlance applied to a particular town or city, simply designates the town or city where the county-seat is for the time being established. There may be a removal of the county-seat in fact, though not in accordance with law. And it might be plausibly argued that, when such a removal takes place, the statute is satisfied if the court be held where the county offices are and where the public business of the county is transacted. This is perhaps true, according to the strict letter of the law; for the town to which the county-seat is illegally removed becomes, temporarily at least, the place of its actual location, and the statute specifies no particular town by name, nor does it, in words, require the court to be held at the place where the county-seat has been regularly and legally established. But this construction of the law is open to serious objection, and might lead to embarrassing results. We prefer to rest our decision upon broader, and, to us, more satisfactory, grounds.

No issue is made with the definition usually given, that a 'court' consists of 'persons officially assembled, under authority of law, at the appropriate time and place, for the administration of justice,' nor is it denied that the place of meeting is an important element in the definition. We shall maintain the proposition that, under the admitted facts before us, there was a de facto location of the county-seat at the town of Conejos, and that therefore, the judgment under consideration is not vulnerable in the present proceeding. For more than 12 years Conejos has been regarded as the lawful county-seat. During this period, unquestionably, it has been the county-seat in fact; that is, the county buildings, offices, and records have, without exception, been at that place, and the county business, including that of the district and county courts, has all been transacted there. The people of the state and the different departments of the state government have recognized Conejos as the place where the county-seat was lawfully established. No direct judicial proceeding has ever been instituted for the purpose of determining the legality of such location in fact, or for the purpose of restoring the county-seat to Guadaloupe. On the contrary, the inhabitants of the county, so far as we are advised, have universally acquiesced in this disposition of the county-seat. During these 12 years, property has been bought and sold, and public moneys have been expended, in permanent improvements at the town of Conejos, upon the strength of its being the county-seat. Estates of deceased persons have been there administered upon, and the interests of minor heirs have been there adjudicated. At that place property rights of all kinds have been litigated and determined, and criminals have been tried, convicted, sentenced, and executed, or sent to the penitentiary. In this state, the power to locate and remove the county-seat is lodged by the constitution exclusively with the inhabitants of the county. They may, by a popular vote, establish or change the county-seat at will, save that removals cannot be made oftener than once in four years. Their absolute power over the subject is restricted only by the limitation mentioned, and the statutory regulations prescribing the manner of calling and conducting the election. The knowledge of the inhabitants of Conejos county that the county-seat had in fact been removed from Guadaloupe, and established at the town of Conejos, cannot be questioned, nor can we presume that, while acquiescing during 12 years in the change, they have been ignorant of the manner in which it took place; and, since the entire control of the subject has always been in their hands, we are inclined to the view that their conduct in the premises should be treated as such a confirmation of the unauthorized transfer, or at least such a waiver of objection thereto, as justifies an application of the de facto doctrine, so far as judicial proceedings that have taken place under all the forms of law at the town of Conejos are concerned. This conclusion is re-enforced by the facts above narrated, showing a universal outside recognition of Conejos as the de jure county-seat during the long period mentioned. We are aware of no principle of law that compels us to hold all such proceedings void, and thus entail the appalling consequences that would inevitably follow. We do not hold that there may be a de facto court, although this view has been vigorously and ably maintained. Burt v. Railroad Co., (Minn.) 4 Amer. & Eng. Corp. Cas. 426, and note. When a court or office is 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...