Orman v. People ex rel. Cooper

• Decision Date: 09 February 1903
• Citation: 18 Colo.App. 302,71 P. 430
• Parties: ORMAN et al. v. PEOPLE ex rel. COOPER.
• Court: Colorado Court of Appeals

71 P. 430

18 Colo.App. 302

ORMAN et al. v. PEOPLE ex rel. COOPER.

Court of Appeals of Colorado

February 9, 1903

Appeal from district court, Arapahoe county.

Mandamus by the people, on the relation of C.A. Cooper, against James B. Orman and others, constituting the State Board of Canvassers, to compel defendants to recognize and canvass an abstract of votes signed by the county clerk of San Juan county, and to prohibit them from canvassing another abstract by two justices of the peace of such county. From a judgment granting the writ, defendants appeal. Reversed.

T.J O'Donnell and Sam B. Belford, for appellants.

H.J Hersey, for appellee.

WILSON P.J.

This was a proceeding in mandamus instituted against respondents and appellants, constituting the State Board of Election Canvassers, which board consisted of the several individuals then holding the five highest state executive offices, namely, Governor, Secretary of State Auditor of State, Treasurer, and Attorney General. The petition set forth that the relator was a candidate for representative from San Juan county at the recent general election; that there had been presented to the State Board of Canvassers two abstracts of the votes cast in said San Juan county for representative, or what at least purported to be such abstracts--the one signed by the county clerk of said county alone, and showing thereon that the relator had received at such election the highest number of votes cast for representative; and the other signed by two justices of the peace, who had been called to assist the county clerk, as required by law, in canvassing the precinct returns, showing that one J.T. Whitelaw had received the highest number of votes for such office. The petition further alleged upon information and belief that it was the purpose and plan of the respondents to unlawfully and wrongfully recognize and act upon the last-mentioned abstract, thereby determining that said Whitelaw had received the highest number of votes cast in said county for representative, and causing a certificate of election to be issued to him to that effect and prayed that the respondents be compelled by mandate of the court to recognize and canvass the abstract of votes signed by the county clerk of said San Juan county, and that they be enjoined and restrained and prohibited from canvassing the abstract signed by the two justices of the peace. Judgment was rendered awarding the writ in accordance with the prayer of the petition, and from this the respondents appeal. The case comes up in this court at the present time upon motion of respondents to set aside and vacate so much of the mandate of the district court as enjoined or commanded the said Board of Canvassers to refrain from considering, recognizing, or canvassing what purported to be the abstract of the votes of San Juan county, signed by the two justices of the peace.

At the outset relator challenges the jurisdiction of this court, contending that in proceedings of this character the Court of Appeals has no jurisdiction to review the judgment of a district court, either upon appeal or error. The ground upon which counsel so contend is, as we understand it, that mandamus is a special procedure, and that in the Code provisions providing such special procedure no provision whatever is made for an appeal to this court, or for review by this court of the proceeding on writ of error. In the act creating the Court of Appeals, the court was invested with jurisdiction to "review the final judgments of inferior courts of record in all civil cases and in all criminal cases not capital." 3 Mills' Ann.St.

§ 1002d: Laws 1891, p. 119. § 4. That a proceeding in mandamus under the Code is not a civil case or action cannot be successfully maintained upon reason or authority; and, indeed, relator does not appear to rely upon such contention. In this jurisdiction the question, if it existed at all, is settled by our own Supreme Court. Stoddard v. Benton. 6 Colo. 508; Jones v. Bank of Leadville, 10 Colo. 479. 17 P. 272. If mandamus be a civil remedy, as the Supreme Court says, we cannot conceive of any way in which it can be enforced save by a civil action. The fact that the Court of Appeals is confessedly without original jurisdiction to issue writs of mandamus has no bearing whatever upon the question here presented. The court is also without original jurisdiction to issue any of the original and remedial writs which the Supreme Court is invested by the Constitution with power to issue. Const. art. 6, § 3. We fail to see, however, why this fact has any bearing, even in the remotest degree, upon the jurisdiction of this court to review upon appeal and error the final action or judgment of the district courts in such cases, they being inferior courts of record. Neither has the language of the constitutional provision above cited, giving the Supreme Court the power to issue such writ, and also "authority to hear and determine the same," any bearing upon the question here presented. By that the Supreme Court was simply vested with the power to hear and determine the writ which it might issue. Its power or its jurisdiction to review upon appeal or error the action of district courts in the issuance of such writs was not derived from nor dependent upon the use of that language in the Constitution. That the judgment in this proceeding was not final is not even suggested. This proceeding, therefore, being a civil action, and the judgment rendered being final, this court has unquestioned jurisdiction to review the latter, either on appeal or error. Livermore v. Truesdell, 7 Colo.App. 470, 43 P. 663.

Respondents on their part, challenge the jurisdiction of the district court over the subject-matter of this suit or of these appellants, or either of them, denying the existence of any right, power, or authority in it to issue the writ, or to enjoin, command, or coerce respondents, as by the said writ it was assumed and purported to be done. Counsel take the position that the State Board of Canvassers, in the exercise of the power here in question--that is, in the canvassing of the returns of an election for representative in the General Assembly--is in the discharge of duties purely political and governmental, and hence that its action cannot be controlled by mandamus. In our opinion, this contention is correct. Greenwood, etc., Land Co. v. Routt et al., 17 Colo. 157, 28 P. 1125, 15 L.R.A. 369, 31 Am.St.Rep. 284. It would seem that, regardless of the official position of the individuals upon whom should be imposed the final duty of determining in the first instance who has been elected to and should...