People ex rel. Grenfell v. District Court of Second Judicial Dist. In and For City and County of Denver, 12657.

• Decision Date: 11 May 1931
• Docket Number: 12657.
• Parties: PEOPLE et rel. GRENFELL et al. v. DISTRICT COURT OF SECOND JUDICIAL DIST. IN AND FOR CITY AND COUNTY OF DENVER et al.
• Court: Colorado Supreme Court

299 P. 1

89 Colo. 78

PEOPLE et rel. GRENFELL et al. v. DISTRICT COURT OF SECOND JUDICIAL DIST. IN AND FOR CITY AND COUNTY OF DENVER et al.

No. 12657.

Supreme Court of Colorado, En Banc.

May 11, 1931

Proceedings by the People of the State of Colorado, on the relation of Helen L. Grenfell and others, individually and as members of the Colorado Board of Corrections, and others, for writ of prohibition against the District Court of the Second Judicial District of the State of Colorado in and for the City and County of Denver, and Hon. Henley A. Calvert, Judge thereof.

Writ granted.

Horace N. Hawkins, Horace N. Hawkins, Jr., Harold G. King, Charles T. Mahoney, and Arthur R. Morrison, all of Denver, for petitioners.

Earl Wettengel, Dist. Atty., and Charles F. Morris, Deputy Dist Atty., both of Denver, for respondents.

CAMPBELL J.

The exercise of the original constitutional jurisdiction of this court is sought by the People of the state of Colorado, upon the relation of the three members of the Colorado state board of corrections, the warden of the state penitentiary, the special deputy warden, and the chief of the State Law Enforcement Department of the State of Colorado, in their petition for a writ of prohibition against the district court of the Second judicial district of the state of Colorado in and for the city and county of Denver, and Honorable Henley A. Calvert, one of the judges thereof. Petitioners thereby seek to restrain the district court and the judge from exercising any further jurisdiction in a certain contempt proceeding now pending in such court, filed by the district attorney, whose object was and is to have these petitioners punished for their alleged violation of an order and judgment of said court theretofore made and entered in a criminal action, 'now depending therein,' whereby the defendant therein, George West, was by the court sentenced to the state penitentiary and to be there kept and confined for a period of not exceeding ten years and not less than eight years from the date of his incarceration. The contempt is said to consist in the fact that the petitioners here, in contravention of the commitment order, and in utter disregard of the same, and contrary to the laws of the state of Colorado, released and permitted the defendant to leave the state penitentiary at Canon City, Fremont county, Colo., and to be and remain at large in the city and county of Denver and so to remain without the walls of the state penitentiary and to live at home from May 14, 1930, to May 20 of the same year, all in utter disregard, and in deflance, of the order of the district court made and entered of record in said criminal case.

This petition to show cause was signed, but not verified, by the district attorney or by any other person. An employee of the district attorney's office filed an affidavit in the proceeding in which he says that he had investigated the report that defendant was at large in the city of Denver and permitted to live at home and not confined within the walls of the penitentiary, and found that such reports were true and that he had been released from the penitentiary upon the orders of the petitioners herein. This affidavit, however, does not refer to, or purport to be a verification of, the petition of the district attorney.

If the alleged contempt is a civil constructive contempt, the Code section applicable thereto requires a verification of the charging petition. If it is a criminal constructive contempt and is instituted by the Attorney General or the district attorney, verification is unnecessary. People v. News-Times Pub. Co., 35 Colo. 253, 359, 374, 84 P. 912; Coolidge v. People, 72 Colo. 35-38, 209 P. 504. We do not find it necessary, however, to determine whether the contempt attempted to be charged in the petition which was filed in the district court is a civil, or a criminal, constructive contempt. And this is so because, if it be a criminal constructive contempt, and verification by the district attorney of the charging petition is unnecessary, the district court has not jurisdiction in the contempt proceeding before it to inquire into or punish the penitentiary officers for the alleged contempt of the district court which the petition charged they had committed.

In Wheeler v. N.C. Irri. Co., 9 Colo. 248, 11 P. 103, Judge Helm announced the prevailing view on the subject of applications for the issuance of original writs, and his opinion has often been referred to with approval by this court and is now embodied in our rule 57. In People v. District Court, 80 Colo. 538, 253 P. 24, 25, in summarizing this doctrine, we said that our jurisdiction to issue prerogative writs is not properly invoked 'unless, among other things, the matter in dispute is public juris, affects the state as a whole and in its sovereign capacity, and unless the inferior court is without jurisdiction in the premises, and always the issuance of the writ is discretionary and not as of right.' With this and other decisions to the same effect in mind, let us see if this application comes within the requirements.

It is made in the name of the people, on the relation of the members of the Colorado board of corrections and the warden and other officers of the state penitentiary. This board, under our statutes, as they read at the times above mentioned, was invested with plenary power and control and management of the penitentiary and other state institutions, and its members were certified for appointment by the State Civil Service Commission, and the Governor had no voice in their selection but was compelled to appoint only those thus certified. He had not power to remove them and they remained in office until they died, resigned, or were properly removed by the Civil Service Commission. As state officers they were amenable only to the Constitution and the statutes of the state for violation or neglect of official duty. Our statute has recently been modified in these particulars. That the matter in dispute, as above stated, is publici juris is not questioned. Indeed, concerning, as it does, the conduct and method of managing an important state institution by state officers, the state as a whole in its capacity of soveriegn is directly affected. All of the essential elements necessary to invoke our jurisdiction in this application are unquestionably present, as above stated, provided the trial court is without jurisdiction to hear and determine the alleged contempt, and if the situation disclosed in the pending petition is of such grave importance as to invoke our discretionary power to afford the extraordinary relief prayed for. We have not overlooked some of our former decisions where we said that such applications should be made or instituted upon the relation of the Governor of the State acting by the Attorney General. But we think that requirement is not applicable here. It is matter of common knowledge, of which we take judicial notice, that the Governor of the State and the Attorney General, in office at the time this application was made, were not in harmony with the Colorado board of corrections in its management of the affairs of the institutions under its control. It is not at all likely, in these circumstances, that the Governor would have joined with the board in this application if requested to do so, and the board, considering the situation as above stated, was justified in acting as relator without securing the consent or approval of the Governor thereto.

Appropriate punishment of the petitioners here was sought in the district court for their alleged contempt of that tribunal, which consisted of the permission which they gave to a prisoner committed to the penitentiary by the Denver district court, to be at large and not confined within the walls of the penitentiary as the order of commitment of the court provided. The contempt petition charges, among other things, that the sentence or commitment order of the Denver district court was made in a criminal action in that court in which the prisoner committed was the defendant and that this action was still 'depending' in that court.

The district attorney apparently considered that the district court had jurisdiction to hear and determine the alleged contempt because, as he thought, the action, in which the commitment order was made, was still pending. The contempt order or sentence was entered in a criminal action in 1927 of which the district court had lost jurisdiction. It is not claimed that...