People ex rel. Alexander v. District Court of Tenth Judicial District

• Decision Date: 29 October 1901
• Citation: 68 P. 242,29 Colo. 182
• Parties: PEOPLE ex rel. ALEXANDER et al. v. DISTRICT COURT OF TENTH JUDICIAL DISTRICT et al.
• Court: Colorado Supreme Court

68 P. 242

29 Colo. 182

PEOPLE ex rel. ALEXANDER et al. v. DISTRICT COURT OF TENTH JUDICIAL DISTRICT et al.

Supreme Court of Colorado

October 29, 1901

ORIGINAL PROCEEDINGS on the relation of S. H. Alexander and others against the district court of the Tenth judicial district and another, for writ of prohibition directing such court to refrain from issuing an injunction. Granted.

An original proceeding was commenced in this court on September 25, 1901, by the filing of a petition by the attorney general, representing the state board of assessors asking for an alternative writ of prohibition directed to the district court of Pueblo county and to N. Walter Dixon, the judge thereof. Upon hearing, the alternative writ was issued returnable October 7, 1901. In the petition is contained the record of the proceedings had in the district court of Pueblo county in an action begun on the 26th of August, 1901 wherein the persons who constitute the state board of assessors, and the secretary thereof, were made defendants and certain railroad, telegraph, and telephone companies corporations, were the plaintiffs. This complaint alleges, among other things, that a judgment was rendered in the said district court of Pueblo county, by which judgment the act of the legislature entitled 'An act concerning revenue,' passed in the year 1901 (Sess. Laws 1901, p. 241), was declared null and void, because unconstitutional, and that the said judgment has in no manner been declared invalid, and is still in full force and effect. Then follows a statement containing various sections of the said revenue act, and it is alleged that the meetings of the state board of assessors, held at Denver, and all the acts and doings of said board, were illegal, null, and void, for the reason that the said act was never legally passed by the legislature, and because the said legislature exceeded its powers in attempting to make and provide for the election and selection of the 13 persons who now claim to be the state board of assessors as the board of assessors. It further alleges, 'And if the said board is allowed to continue in the performance of their duty, as prescribed by the said revenue act, as they are now threatening to do, great and irreparable damage will be caused to these plaintiffs, and they will be obliged to incur and pay, in order to obtain their just rights and remedies in the premises, great sums, as costs and damages, and that a suit at law to recover the same will be wholly inadequate;' and sets forth the reasons why a suit at law will be inadequate,--among others, that the alleged illegal acts of the assessors will result in a great multiplicity of suits, and involve both plaintiffs and defendants in an immense amount of costly, vexatious, and long-continued litigation; and that the acts of the said board of assessors will result in casting a cloud upon the title to their property. It further alleges that great injury will result if notice be given, because they fear that the acts sought to be enjoined will be performed by said defendants; and pray for a temporary writ of injunction restraining the defendants from further proceeding with their duties under the said revenue act, and that, upon hearing, the said injunction be made perpetual. On the same day a temporary writ of injunction was issued, as prayed for. On the 10th day of September a motion for change of venue was filed by the attorney general in behalf of said defendants, on the grounds, generally, that said defendants were public officers; that their duties were to be performed at the capitol; and that the cause of action mentioned in the complaint arose in the county of Arapahoe, and not in the county of Pueblo. The petition in this court further alleges that the motion for change of venue was, after various continuances, heard by the said judge on the 21st of September, 1901, and that upon said day the said district judge refused to inform the attorney general when a decision would be rendered on said motion, and that he thereupon adjourned court for the period of one week. They further allege in the petition that they, the petitioners, except A. B. Gray, constitute a board known as the 'State Board of Assessors'; that the said A. B. Gray is the secretary thereof; and that all the alleged wrongs complained of, concerning which injunctive relief was sought, relate wholly and entirely to their official duties as such state board of assessors and its secretary. It is further alleged that the said judge, on or about the 5th day of August, 1901, rendered final judgment in a certain cause then pending in said court, wherein he made a certain writ of mandamus theretofore issued a permanent one, and declared the said revenue act to be unconstitutional, because not passed by the legislature in a constitutional manner; and that subsequent thereto a supersedeas issued from this court staying all further proceedings in said cause. It is further alleged that by reason of the illegal retention of said cause by the said judge, and the issuance of said writ of injunction, the petitioners are restrained and enjoined from performing their duties as state officers, and that not only the state officers, but the county officers as well, who are charged with the duty of collecting the revenue of the state, will be so hampered in their work that they will be unable to perform their duties, because they will have no basis upon which to make tax levies; 'and that it is against public policy to have said officers restrained from the execution of their duties at the suit of companies and individuals that have a complete and adequate remedy at law.' The respondent, in his answer, filed on October 3d, alleges that the writ of prohibition can be employed to restrain the action of an inferior court only when such inferior court proceeds or threatens to act without jurisdiction, or in excess of its rightful jurisdiction; that said relators never at any time presented to said district court any question as to its jurisdiction, either on demurrer to the complaint or by motion to dissolve the restraining order made therein; that the only question ever presented by relators to the court was upon the motion for change of place of trial; that, since the writ of prohibition was issued, the relators have assembled and threatened to violate the restraining order issued by said district court, and to do and perform the acts which therein they are commanded not to do or perform, believing, or pretending to believe, that said prohibition operated as a supersedeas to the said restraining order. He denies that he withheld his decision upon the motion for a change of venue, but avers that he took said motion under advisement, for the reason that he was not satisfied how the same should be determined, and he felt it was his duty to fully investigate the questions presented and to give due consideration 'to the arguments of counsel, whose utterances upon any question, and upon any occasion, are worthy of the highest consideration by any court'; and, further, that on the 23d of September he forthwith began the investigation and consideration of the questions involved in said motion, and prosecuted the same with diligence, until he arrived at a conclusion satisfactory to himself; and that his decision upon said motion would have been rendered long since had it not been for the writ of prohibition issued out of this court. Respondent further says that he has no interest whatever, direct or indirect, proximate or remote, in the litigation pending in said district court, nor in the outcome of said litigation, nor has he any desire or preference as to the outcome of said litigation other than that justice be done according to law. The statute under consideration in this case is, in part, as follows: 'Sec. 111. On or before the fifteenth day of September in each year the board shall transmit to the county clerk of each county through which the track of any railway company, or telegraph wire or telephone wire of any telegraph or telephone company may extend, a statement showing the length of the main track of such railway and the number of miles of such telegraph and telephone wire in such county, and the assessed value per mile of the same, as fixed by a ratable distribution of the assessed value of the whole property of such corporation, among the different counties of the state. As also a statement showing the amount to be assessed in such county, against each express company, fast freight company, and each firm and individual operating any of such cars, as hereinbefore mentioned. * * *' Sess. Laws, 1901, p. 299.

Steele, J., dissenting.

Chas. C. Post, Atty. Gen., and Morrison & De Soto, for petitioners.

Willard Teller, C. W. Waterman, Henry T. Rogers, Elmer E. Whitted, Charles E. Gast, Henry A. Dubbs, D. C. Beaman, A. E. Pattison, T. H. Devine, H. G. Lunt, and H. M. Blackmer, for respondents.

STEELE, J. (after stating the facts).

We are met at the very threshold by the argument that the judge of the district court, not having had an opportunity to determine the questions presented in the petition for prohibition, because no plea to the jurisdiction was interposed, and because the motion for change of venue has not been decided by him, proper respect for the district court requires that the writ of prohibition should not issue until the judge has had an opportunity to determine, in the first instance, the question of jurisdiction. Ordinarily this argument is sound, and in cases involving only private rights we think we should, in the exercise of a judicial discretion refuse the writ under such circumstances. The great weight of authority is, however, that, if a want of jurisdiction is apparent on the face of the pleadings in...