People ex rel. Dougan v. District Court of Lake County

• Decision Date: 01 April 1883
• Parties: THE PEOPLE, ETC., EX REL. DOUGAN ET AL. v. THE DISTRICT COURT OF LAKE COUNTY.
• Court: Colorado Supreme Court

6 Colo. 534

THE PEOPLE, ETC., EX REL. DOUGAN ET AL. v. THE DISTRICT COURT OF LAKE COUNTY.

Supreme Court of Colorado

April, 1883

APPLICATION for writ of prohibition. The case is stated in the opinion.

Messrs D. E. PARKS, A. W. RUCKER, D. J. HAYNES and H. B. JOHNSON for the relators.

Messrs THOMAS GEORGE and J. L. MURPHY, for respondents.

HELM J.

No argument is necessary to show that if petitioners are entitled to any relief in this cause, prohibition is the proper proceeding there for. The court below has taken jurisdiction of the contempt case; it has tried petitioners and adjudged them guilty of contempt; it has deferred sentence, but threatens to pronounce the same. There is no final judgment subject to review in this court by appeal, by writ of error, or by certiorari. No imprisonment has followed a sentence pronounced, and relief by habeas corpus cannot be invoked. Yet imprisonment may be a part of the sentence, and before aid could be given by this court after judgment, petitioners might be deprived of their liberty, and undergo several days' confinement. A stronger case for this preventive relief, if the district court or judge is assuming a jurisdiction without legal right thereto, it might be difficult to find.

The city council of Leadville had preferred charges against the city solicitor, and were proceedings to consider the same. They were acting in the manner provided by ordinance, and the ordinance was passed in accordance with law. The solicitor was elected or appointed by the council, and held his office subject to removal by them for certain causes; among these causes are the ones specified in the charges preferred in the case before them, viz.: malfeasance and incompetency in office. The record, including the petition presented to the district judge, does not justify the conclusion that the council were assuming to act as a court and try the solicitor for the purpose of inflicting upon him, if found guilty, any other punishment than reprimand, suspension or removal from office.

The district judge, upon petition, granted an order commanding the members of the city council to show cause why a writ of prohibition should not issue, and directing that further proceedings by them be stayed until the hearing thereof.

The first question we deem it important to notice is that of jurisdiction in the court or judge to make the order above mentioned to show cause, and to stay proceedings.

The object of the writ of prohibition is to restrain subordinate judicial tribunals from exceeding their jurisdiction. High Ex. Legal Rem. ss 762, 784.

'It is used to confine inferior courts, in the exercise of their powers, within the limits fixed by law.' Leonard v. Bartels et al. 4 Col. 95.

It will be observed that the tribunal to which the writ issues must be acting in a judicial and not merely an administrative or ministerial capacity. See High Ex. Legal Rem. s 769; Home Ins. Co. v. Flint, 13 Minn. 244, and cases there cited.

The city council is not a judicial body; and it is doubtful if the legislature, under the constitution, could invest it with judicial authority. In the case under consideration it was not acting or attempting to act in a judicial capacity. The examination of charges preferred against the city solicitor, finding him guilty of malfeasance in office, and removing him there from, by the city council, was not the exercise of judicial power. And this is true though the offenses charged may constitute causes of action cognizable by the courts. See Donahue v. The County of Will et al. 100 Ill. 94.

The power of suspending or removing the solicitor was by statute and ordinance vested in the city council, and investigation into his official conduct, with a view to suspension or removal, was a proceeding entirely within their discretion and control.

We think the district court had no jurisdiction to control the action of the city...