Patterson v. People ex rel. Parr

• Decision Date: 10 February 1913
• Citation: 130 P. 618,23 Colo.App. 479
• Parties: PATTERSON, Mayor, et al. v. PEOPLE ex rel. PARR et al.
• Court: Colorado Court of Appeals

130 P. 618

23 Colo.App. 479

PATTERSON, Mayor, et al. v. PEOPLE ex rel. PARR et al.

Court of Appeals of Colorado

February 10, 1913

Appeal from District Court, Archuleta County; Charles A. Pike Judge.

Suit by the People of the State of Colorado, on the relation of Estie M. Parr, for himself and all others similarly situated against J.B. Patterson, as mayor, Charles A. Day and others constituting the board of trustees, and A.M. Emigh, town clerk and recorder, of the town, of Pagosa Springs, Colo Judgment for relator, and defendants appeal. Affirmed.

Reese McCloskey, of Durango, and A.M. Emigh, of Pagosa Springs, for appellants.

George W. Lane and Charles A. Johnson, both of Durango, for appellees.

HURLBUT J.

May 16, 1912, appellees filed motion in this court to strike the bill of exceptions. This motion was filed 20 months after the filing of the transcript of record, and after two motions had been filed by appellees in the Supreme Court, both of which were heard and determined by that court; but in neither of said motions, or arguments therein, was any suggestion made as to the bill of exceptions not being properly a part of the record. Under these circumstances, whatever rights appellees had to have the bill of exceptions stricken from the record were waived by them. Murphy v. Cunningham, 1 Colo. 467; City of Central v. Wilcoxen, 3 Colo. 566; Gilpin v. Gilpin, 12 Colo. 504, 21 P. 612; Greig v. Clement et al., 20 Colo. 167, 37 P. 960; Ritchey v. People, 23 Colo. 314, 47 P. 272, 384. In the last case cited it was held that after a delay of four months after filing transcript, and where two motions had been filed in the interim without suggesting in either the absence of a proper bill of exceptions, a motion to strike bill of exceptions came too late. Nothing appears in the record before us to excuse so long a delay in filing the motion to strike. The same will be denied.

We will now consider the case as presented by the record. May 9, 1910, in the district court of Archuleta county, appellees (plaintiffs below) filed their complaint against appellants (defendants), therein alleging that on April 5, 1910, an election for municipal officers was held in the town of Pagosa Springs in said county, at which there was submitted to the qualified voters thereof the question as to whether or not said town should become anti-saloon territory; that the votes upon said question were duly counted, canvassed, and returned by the proper authorities; that by such returns it appeared that 148 votes were cast in the affirmative of such proposition, and 154 votes in the negative. It was further alleged that about 20 people, naming them, voted at said election in the negative upon said proposition, all of whom were illegal voters, and that, had it not been for such illegal votes, the returns would have shown the affirmative of the proposition to have been duly carried; that all the votes cast in the affirmative were legal; that two of the judges of election fraudulently conspired together to prevent, and did prevent, certain qualified electors from voting, closing with a prayer that defendants be enjoined from issuing any saloon licenses in said town, or any licenses for the sale of intoxicating liquors; and that all such licenses issued subsequent to the election be revoked by the city council. To this complaint defendants filed a demurrer, challenging the jurisdiction of the court over the subject-matter, alleging that the complaint did not state facts sufficient to constitute a cause of action, and that there was a defect or misjoinder of parties defendant. The demurrer was overruled, after which answer and replication were duly filed.

The question as to whether or not the district court had jurisdiction to hear and determine the issues formed by the pleadings is squarely presented to us for determination, and must be disposed of before considering the merits. It is noticeable that there is no constitutional or statutory provision of this state which provides a method or procedure for testing the validity of an election held under the local option statute. The Session Laws of 1907, p. 495, known as the "Local Option Law," while providing the manner of holding an election and voting upon the question, prescribes no method for testing the validity thereof. Appellants' position is that no provision of the Constitution nor any legislative enactment confers jurisdiction upon the district court under its legal or equitable powers to hear and determine this cause; that if appellee, relator, had any remedy, it was only through a proceeding in the nature of quo warranto; and that the local option act of 1907 is silent upon the question. On the other hand, appellees, while admitting the absence of statutory authority, contend that, under section 11, art. 6, of the Constitution, the district court had plenary power and jurisdiction to hear and determine this cause. Obviously the question presented is of grave importance.

The two sections of the Constitution which bear directly upon the discussion read as follows: (1) Article 6, § 11: "The district courts shall have original jurisdiction of all causes, both at law and in equity, and such appellate jurisdiction as may be conferred by law. They shall have original jurisdiction to determine all controversies upon relation of any person on behalf of the people, concerning the rights, duties and liabilities of railroad, telegraph or toll road companies or corporations." (2) Article 7,§ 12: "The General Assembly shall, by general law, designate the courts and judges by whom the several classes of election contests not herein provided for shall be tried, and regulate the manner of trial and all matters incident thereto, but no such law shall apply to any contest arising out of an election held before its passage." It has been held by the Supreme Court that section 11, art. 6, is the only provision of the Constitution which fixes the jurisdiction of the district court. Denver Circle R. Co. v. Nestor, 10 Colo. 403, 15 P. 714. The proceedings below were clearly of an equitable nature. The ultimate object sought was to purge the ballot of fraud, enjoin the city council from issuing any further liquor licenses, and to compel the council to revoke any such licenses issued subsequent to the election. Section 11, art. 6, quoted, purports to define the jurisdiction of district courts. It is sweeping in its terms, and the language used suggests nothing of ambiguity as to its meaning. We find nothing elsewhere in the Constitution which appears to limit or qualify its jurisdiction as therein granted. Our attention had not been called to any decision in the appellate courts of this state in which the jurisdictional powers of the district court under this section were challenged in a case of this kind; hence, no assistance can be obtained from our own courts in determining the proposition. Many states, however, have constitutional provisions similar to section 11, and almost identical with it in phraseology, and many decisions therein have been rendered involving questions growing out of local option and other similar elections, in which such constitutional provisions have been interpreted and the law as applicable thereto construed to a greater or less extent.

By reason of the absence of a provision of the Constitution or statute designating a forum or tribunal with power to investigate and determine frauds and mistakes in an election of this kind, the question is narrowed to the one proposition: Did the district court, under its equity powers as granted by section 11, have jurisdiction and power to entertain this cause and grant the relief prayed for? We think the equity doctrine upon which appellees so strongly rely should be qualified in this: that, while admitting the maxim that "a court of equity will not permit a wrong without providing a remedy," the doctrine does not apply unless the court of equity has jurisdiction to hear and determine the subject-matter submitted to it. Jurisdiction is the very question now before us. If it be conceded that the district court, under its equity powers, has jurisdiction of this case, then there is no question but what it can grant full relief from the alleged wrong as stated in the complaint. Courts of equity, the same as courts of law, from the earliest times to the present, have been limited in their jurisdictional powers. When such courts were first recognized in the remote past, there was an apparent disposition on their part to intrench upon the jurisdiction of courts of law in proceedings wherein the subject-matter had been previously cognizable only by the latter courts, and for many years there was constant friction between the two courts as to their respective jurisdiction over the various causes of action which arose for determination. In modern times, however, such controversies have rarely arisen, as the highest judicial tribunals of England and the United States have defined the status of the respective courts as to their jurisdictions and powers.

Another question here arises, namely: Is the district court, under section 11, restricted in the exercise of its equity powers to such cases or causes only as were cognizable in courts of equity prior to the adoption of our Constitution? This inquiry is important in the light of decisions hereinafter cited. States having substantially the same constitutional provision have recognized the jurisdiction of the courts, under their equitable powers, to entertain and decide cases similar to the one at bar although it was conceded that election contests between individuals for an office, and elections where propositions were submitted to the electors to be voted on, were unknown at common law, either in the courts...