Union Colony of Colorado v. Elliott

• Decision Date: 01 December 1880
• Citation: 5 Colo. 371
• Parties: THE UNION COLONY OF COLORADO ET AL. v. VICTOR A. ELLIOTT, Judge of the District Court, etc.
• Court: Colorado Supreme Court

5 Colo. 371

THE UNION COLONY OF COLORADO ET AL. v. VICTOR A. ELLIOTT, Judge of the District Court, etc.

Supreme Court of Colorado

December, 1880

PETITION for writ of mandamus.

Messrs WELLS, SMITH & MACON, for petitioners.

Hon VICTOR A. ELLIOTT, pro se.

Messrs B. M. & C. J. HUGHES, Messrs. DIXON & REED, and Mr. H. P. H BROMWELL, of counsel for respondent.

BECK J.

The petition for the awarding of the writ of mandamus in this case, sets out that the petitioners are corporations, doing business in Weld county, and that they are owners of and interested in ditches, appropriating water from the Cache-la-Poudre river, in water district No. 3. It states that a referee was appointed to take testimony in said water district, under the provisions of the irrigation act of February 19, 1879; that due notice was given, and the testimony of all persons attending was taken, as required by the act, and duly returned by the referee. That thereafter two several applications were made to the Hon. Victor A. Elliott, judge of the Second Judicial District of the State, within which said county and water district are situated, to make necessary orders and rules for carrying out the intent of the act and for a hearing and decree under its provisions. The petition also sets out the rules made by the judge in the premises, and avers that the intent of the act cannot be carried out under the rules so made, and that they require pleadings and actions not contemplated by the act, and that they are without authority of law, and are in contravention of the spirit and meaning of the statute.

The prayer of the petition is that a writ of mandamus issue to said judge, commanding him to make and promulgate such rules as to him may seem necessary and expedient for carrying out the intent of the act, etc., also all orders and rules necessary and proper for the regulation of the hearing, adjudicating, and settling of all questions concerning the priority of appropriation of water between ditch companies and the owners of ditches drawing water for irrigation purposes, from the Cache-la-Poudre river or its tributaries, within water district No. 3; for the giving of notice to all concerned of the time and place of hearing; that he appoint an early day for the hearing, and that on the day appointed he examine the testimony taken and reported by the referee, and upon it enter a decree determining the several priorities of the several ditches and reservoirs concerning which testimony was offered before the referee, with the amount of water each shall be held to have appropriated. To this petition a demurrer has been interposed questioning its sufficiency in law to authorize the relief prayed for.

The rules and principles of law governing the exercise of jurisdiction by mandamus appear to be pretty well settled in the books, but much difficulty is frequently experienced in the application of these principles and rules to cases arising in the courts wherein the exercise of this extraordinary jurisdiction is invoked. Perhaps this is more especially the case where the person against whom the writ is prayed is invested with a discretion as to the act or duty to be performed.

Some of the general principles controlling the issuing of the writ and the jurisdiction by mandamus are, that if a judicial officer refuses to act in the performance of an official duty, the writ will issue to compel action, and the exercise of official discretion or judgment, but the mandate will contain no direction as to the manner in which the duty shall be performed. The proper function of the writ is merely to set in motion. It will therefore, in a proper case, be allowed to command action, but never to control discretion. To warrant relief by this means the right must be clearly established, for the writ never issues in doubtful cases, nor where, if issued, it would prove unavailing; there must be no other adequate legal remedy, and in no case will it issue where it appears that the official discretion has been exercised, unless it be made to appear that there has been an abuse of the discretion, or that it has not been exercised in accordance with law. Nor will it lie in all cases, for the cause that parties have no other legal remedy. High on Ex. Leg. Rem. Secs. 5-24, and authorities there cited. It has been further held that where subordinate courts have acted judicially upon matters properly presented, their decisions, whether right or wrong, can not be altered or controlled by mandamus. Ibid, Sec. 156, and cases cited: Ex parte Hoyt, 13 Pet. 279.

We understand the petitioners and their counsel to be of opinion that the district judge, under an erroneous view of the statute, has prescribed rules in violation of its spirit and intent, and that his action in the premises is wholly outside his judicial discretion, and that these rules impose conditions and hardships upon those desirous of having their rights adjudicated not warranted by the statute. From this view of the case the inference is drawn that the discretion to make necessary rules and orders to govern proceedings under the act in question has not been exercised at all; and that the neglect or refusal of the judge to adjudicate the rights of the petitioners, until a compliance on their part with the rules made is tantamount to a refusal to act upon a preliminary objection, which is purely a matter of law, and as to which the judge has misconstrued the law.

It has been held that where a duty is enjoined to be performed with discretion, the discretion can not be exercised arbitrarily, but must be exercised for the public good; and that where a discretion is abused, and made to work injustice, it is admissible that it be controlled by mandamus. Tapping on Mandamus, p. 66; Village of Glencoe v. The People, 78 Ill. 382.

It was held in Castello v. St. Louis Circuit Court, 28 Mo. 259, that where an inferior judicial tribunal declines to hear a case upon what is termed a preliminary objection, and that objection is purely a matter of law, a mandamus will go if the inferior court has misconstrued the law. Several English anthorities are cited in support of this principle, among them the case of The King v. The Justices of the First Riding of Yorkshire, 5 Barn. & Adol. 667.

Castello brought an action in the circuit court to contest his right to the office of sheriff of St. Louis county. The circuit court refused to try the cause, and struck it from the docket, on the ground that legal notice of the contest had not been given within the time prescribed by statute.

In respect to the notice given, Justice Napton, in delivering the opinion of the court, says: 'If the circuit court declined to go into the merits of the case because the party complaining had not given the notice required by the statute, that was a preliminary objection upon a point of law which this court can review upon a writ of mandamus; and if the circuit court called for a notice which the statute did not require, the mandamus ought to be made peremptory.' But the court being satisfied of the insufficiency of the notice, and of the correctness of the ruling below, denied the writ.

Justice Scott concurred in the conclusion, but denied the correctness of the reasoning. He held that it was the official duty of the judge to pass upon the sufficiency of the statutory notice required in such cases, and that it was wholly immaterial whether the court was wrong or right as to the point of law involved, for when it had proceeded so far as to determine that legal notice had not been given, the controversy was determined, and determined on its legal merits. The right of contest was upon condition that a prescribed notice be given within a certain time after the official count should be declared. If this notice had not been given, it would be futile for the contestant to prove that he had received a majority of the votes cast at the election.

The justice also denied the application to that case of the rule announced by the court, to wit: that where a judicial tribunal declines to hear a case upon a preliminary objection which is purely matter of law, a mandamus will go if the inferior tribunal has misconstrued the law. He held that the appropriate remedy, if any, in such case, was by appeal or writ of error; and if neither would lie, it was because the statute made the action of the circuit court final. In support of his views, Justice Scott referred to to the case in 5 Barn. and Adol. supra, cited in the opinion of the court.

There was an appeal to the quarter sessions. The statute required ten days' notice prior to the next sessions, which was duly given. When the time arrived, the appellant moved that the appeal be respited to the next quarter sessions, which was granted. When the appeal was called on at the sessions to which it had been continued, appellant was called upon to prove his notice of appeal to the respited sessions. No such notice having been considered necessary, or given, his appeal was dismissed. Upon an application to the King's Bench for a mandamus to compel the court of quarter sessions to re-instate and try the appeal, the writ was ordered to issue, on the ground that notice of a respited appeal was not required by any rule of law or any rule of practice at the sessions, and that the court had no authority to exact it from the appellant. All the judges were agreed that if the dismissal had been based upon the original notice of appeal, which was prescribed by statute, they would not interfere. This case appears to support the...