In re Arakawa

• Decision Date: 19 October 1925
• Docket Number: 11371.
• Citation: 240 P. 940,78 Colo. 193
• Parties: Ex parte ARAKAWA.
• Court: Colorado Supreme Court

240 P. 940

78 Colo. 193

Ex parte ARAKAWA.

No. 11371.

Supreme Court of Colorado, En Banc.

October 19, 1925

Rehearing Denied Nov. 9, 1925.

In the matter of the application of J. Arakawa for writ of habeas corpus, directed to the Sheriff of Weld County, to secure petitioner's discharge from custody. On motion to discharge writ.

Motion sustained.

Allen Webster & Drath, of Denver, for petitioner.

Donald McCreery and Hubert D. Waldo, Jr., both of Greeley, and J Paul Hill, of Brighton, for respondent.

ADAMS J.

An original writ of habeas corpus, directed to the sheriff of Weld county, and as acting jailer thereof, was issued out of this court upon behalf of petitioner and upon his ex parte application. The petitioner alleged the existence of matters of such gravity and importance, as well as his inability to obtain relief elsewhere, that we ordered the issuance of the writ, upon petitioner's giving bond pending further consideration by this court. The respondent sheriff answered and obeyed the writ, and has moved that it be discharged.

Petitioner's chief allegation was lack of jurisdiction in the District court of Weld county. He was incarcerated in the common jail there by the respondent as such sheriff and acting jailer under an attachment issued out of that court, in default of a bond required of him for his appearance to show cause why he should not be punished for contempt. The contempt that he was there charged with committing consisted of an alleged disobedience to a preliminary injunction order of that trial court, in a case then and now there pending, and to which he was and is a party, entitled: 'The Co-Operative Farmers' Exchange, Inc., v. J. Honda, et al.' The preliminary injunction was for the purpose of restraining him and other defendants from violating the provisions of a contract alleged to have been made by him and such other defendants, in whole or in part under the provisions of chapter 142, Session Laws 1923, known as 'the Co-Operative Marketing Act.' Petitioner claims a breach of contract upon plaintiff's part, excusing him from performance.

We do not pass upon the merits of that case nor upon any phase of it. This opinion relates only to questions concerning the exercise of original jurisdiction by the Supreme Court in habeas corpus proceedings.

Many of the grounds alleged in support of the application for the writ were based upon objections to the provisions of the Co-Operative Marketing Act (c. 142, L. 1923), and a contract said to have been made thereunder subsequent to the date when it went into effect. When the application for the writ of habeas corpus was made to this court, the act had not been construed by us, and we thought best to give the petitioner the benefit of any doubt as to its validity, when his personal liberty was involved, coupled with his assertion that he would be kept in jail during the season for the marketing of perishable crops that he had raised, or else be required to give what he claimed to be excessive bail for his appearance at the next term of the district court, then some three months distant. These and other serious allegations, and particularly his claim that it was impossible for him to obtain any relief in the district court, and that it was without jurisdiction, made it seem to us to be a matter of such gravity and importance as to warrant us in granting the writ ex parte. If it had not so appeared, we should not have ordered the issuance of the writ, but it is now manifest that the petitioner was wrong. Since we ordered the writ, the validity of the Co-Operative Marketing Act has been sustained by an opinion of this court en banc, written by Mr. Justice Denison, and rendered on the same day that this case is decided. Rifle Potato Growers' Association v. Smith, 240 P. 937. Many of the contentions in the instant case are similar to those disposed of in that proceeding. If not so disposed of, petitioner can litigate them in the case now pending, brought by the Co-Operative Farmers' Exchange, Inc., wherein the petitioner is a party and wherein the district court of Weld county has complete jurisdiction, both over the person of the defendant, the petitioner here, as well as over the subject of the action.

It is now apparent that petitioner was not justified in coming to this court for relief during the middle of the case pending in the district court and before its final determination, nor in making an application for an original writ, which amounted to a request that we should act in the triple capacity of...