People ex rel. Alexander v. District Court

29 Colo. 182

• Court: Supreme Court of Colorado
• Decided: September 15, 1901
• Docket: No. 4425
• Status: Published

Opinions

Mr. Justice Steele

delivered the opinion of the court.

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 the lower court,- no preliminary objection is necessary before suing out the writ of prohibition. High on Extraordinary Legal Remedies, § 774; Havemeyer v. Superior Court, 54 Cal 405; State v. White, 40 Fla. 297; Swinburn v. Smith, 15 W. Va. 483; State v. Aloe, 152 Mo. 471; Farquharson v. Morgan, Q. B. D. 1894, Vol. 1, 552.

In the last case above, Lord Halsbury said: “It has been long settled that, where an objection to the jurisdiction of an inferior court appears on the face of the proceedings, it is immaterial by what means and by whom the court is informed of such objection-. The court must protect the prerogative of the crown and the due course of the administration of justice by prohibiting the inferior court from, proceeding in matters as to which it is apparent that it has no jurisdiction. The objection to the jurisdiction does not in such a case depend on some matter of fact as to which the inferior court may have been deceived or misled, or which it may have unconsciously neglected to observe, and the judge of such court, therefore, must or ought to have known that he was acting beyond his jurisdiction. I find no a'uthority justifying the withholding of a writ of prohibition in such a case.”

The injunction in this case prohibits the regular proceedings of a state board organized to value and apportion certain classes of property for the purposes of taxation, and directed by statute to do this at a certain time; so that fair and uniform taxes may be levied throughout the state. Upon the making and certification of these assessments in such time that the several county assessors can complete their assessment rolls and make abstracts thereof to be submitted to the state board of equalization .and passed upon during the time that board is required by law to sit, depend, perhaps, the validity of the assessment of all the property within the state for taxation. Certainly there can be no fair and just taxation if the property to be assessed by the state board of assessors is excluded.

The filing of the motion for a change of venue is not a waiver of the right to contest the jurisdiction of the district court; for, as is well said in one of the cases cited, “A public law is not the property of any man, and cannot be confessed away.” State v. Aloe, 152 Mo. 471.

The writ of prohibition is asked for by the petitioners mainly on the ground that the judge of the district court has failed for an unreasonable time to pass upon the motion for change of venue. If there were no other reasons apparent to us for granting the writ, we should refuse it. But the petitioners say in their petition that the district court has not jurisdiction to grant the injunction, because they are public officers of the state and the acts which they are enjoined from performing are acts required of them by the statutes of the state, and that it is against public policy to enjoin the performance of public duties by public officers. The court, however, is not limited to the reasons assigned in the petition, but should examine the whole record. It becomes necessary, therefore, in order to determine whether or not the district court of Pueblo county had jurisdiction to issue the writ of injunction, to consider .the petition filed in the district court upon which the injunction was issued. The petition recites that the petitioners own the railroads and the telegraph and telephone properties within the various counties of the state. That the persons named as respondents are about to assemble at the capitol, in Denver, and there assess such properties and certify their asssessment.to the various counties of the state. That the law under which the said persóns claim to act was not only improperly passed by the legislature, but that the legislature exceeded its powers in attempting to provide for the election and selection of the state board of assessors. It is alleged in the petition-that a multiplicity of suits will result unless the said persons constituting the state board of assessors, and the secretary thereof, are enjoined and restrained from making the assessments and certifying the same to the various counties of the state; that if notice be given of the application, it is feared that the acts sought to be restrained will be done and performed by the said defendants; that there is no plain, speedy and adequate remedy at law, and therefore they pray that a temporary injunction issue against the said state board of assessors and that upon hearing of said cause the said injunction be made perpetual. Thus it appears that the whole scope and purpose of the proceeding in the district court was to perpetually enjoin the state board of assessors from valuing this property for the purposes of taxation,upon the ground that the law under which the said board of assessors were about to proceed is unconstitutional and void. This court held, in the case of Frost v. Thomas, 26 Colo. 222, that the courts cannot directly interfere with the discharge of the duties of the governor of the state and restrain him from executing the law, merely because it is alleged that the act is unconstitutional; and the court says: “True, neither department can operate in all respects independently of the other, because each, within its own proper sphere, may impose a restraint upon the remainder; but neither can assume, directly, a superior authority over another, as each, in the exercise of their respective powers, stand on a constitutional equality; and if the judicial department of the state should attempt, in a proceeding of this character, to compel the chief executive to refrain from the performance of his duties, under the act creating the new county, it would be an usurpation of authority which alone devolves upon the executive branch' of the state government to exercise.”

Article IV, Sec. i of the constitution is as' follows: “The executive department shall consist of a governor, lieutenant-governor, secretary of state, auditor of state, state treasurer, attorney-general, and superintendent of public instruction * * *.”

. It will be conceded that the state board of assessors is not part of the executive department as defined by the constitution, but it cannot be seriously contended that it is not part of the executive branch of the state government, in the comprehensive sense in which executive is used when government is divided into three distinct branches. It was conceded in argument that the judicial department should not interfere by injunction with the governor, who is the head of the executive department, but it was contended that the state board of assessors is not part of the executive department within the meaning of our constitution, and that the section of our constitution which provides for non-interference by one department with another does not apply to the case at bar. Under the law of 1901 the duties of the state board of assessors are defined, and it is a most important part of the machinery of the state for the assessment of property. In the comprehensive sense of the term, the state board of assessors is a part of the executive branch of the government, because it is not part of the judiciary, which construes the laws, nor a part of the legislative department, which makes the laws, and because it is charged with the detail of carrying the laws into effect and securing their due observance.

In the case of Walten v. Develing, 61 Ill. 201, the court says: “Where the law authorizes an election to be called in a township to determine whether a majority are in favor of subscribing to the stock of a railroad company, and the election is called in pursuance to the requirements of the law, a court of equity has no power to restrain the officers from holding, or the people from voting at, such election. A writ of injunction issued in such a case is void, and the officers and people are not bound to obey it, as the court has no jurisdiction to issue the writ.” The court cites, with approval, this language: “I am most unwilling to lay down any rule which should limit the power and discretion of the court as to the particular cases in which a special injunction should or should not be granted; but I have always felt,—and since I have been upon the bench I have seen no reason to alter my opinion—that extreme danger attends the exercise of this part of the jurisdiction of the court, and that it is a jurisdiction to be exercised with extreme caution. It is absolutely necessary that the power should exist because there are eases in which it is indispensable; but I believe that, practically, it does as much injustice .as it promotes justice, and it is, therefore, to be exercised with great caution.”

It is said in Throop on Publié Officers, § 842, “That the question has been made how far a court of equity has jurisdiction to interfere in cases of public functionaries who are exercising special public trusts or functions. As to this the established doctrine now is that so far as those functionaries strictly confine themselves within the exercise of those duties which are confided to them by law the court will not interfere.” And in High on Injunctions, § 1326, it is said: “And in general it may be said that the courts will not interfere by injunction to restrain officers of a state from compliance with a law of the state requiring the performance of a public duty at their hands. They will not, therefore, enjoin such officers from receiving bids for a public loan and issuing stock therefor, when such duty is imposed upon them by law, even though the law under which they are acting is alleged to .be unconstitutional.”

Authorities cited by the respondents to the effect that an injunction will lie to restrain the performance of a public duty under a statute which has been declared unconstitutional cannot have weight with us, because, while the law was held unconstitutional by the judge of the district court, that judgment has been suspended for all purposes by the supersedeas of this court.

Therefore, we think that it is not within the jurisdiction of the district court to enjoin the state board of assessors from proceeding with their duties as prescribed by the statute.

We are of opinion also that the acts to be performed by the board were not such as may be enjoined, and that the complaint presented to the district court does not state facts requisite to give a court of equity jurisdiction to interfere by injunction. ....

The cases of Milwaukee v. Koeffler, 116 U. S. 219; Cruickshank v. Bidwell, 176 U. S. 73; Van Cott v. Supervisors, 18 Wis. 259; Insurance Co. v. Bonner, 24 Colo. 220; Highlands v. Johnson, 24 Colo. 371, sustain the position that injunctions to restrain the collection of public revenues are not favored, and that such remedy is not available, because there is a complete remedy at law-, and that the mere fact that the law under which the tax is levied is unconstitutional is not in itself sufficient to justify the granting of the writ, but in addition thereto a case must be made under some well recognized head of equity jurisprudence. If injunction cannot be used to restrain the collection of a tax “because of the mischief which must attend the exercise of the right to contest in the courts of equity every tax which is asserted to be illegal or unauthorized,” what shall be said of an injunction, which as in this case, prohibits the assessment of nearly one-half of the taxable property of the state, exempts the railroad, telegraph and telephone companies from the payment of any tax and places upon the rest of the taxable property of the state the entire burden of sustaining the government.

Mr. Justice Field, in the case of Dows v. Chicago, 11 Wallace, 108, says: “Assuming the tax to be illegal and void, we do not think any ground is presented by the bill justifying- the interposition of a court of equity to enjoin its collection. The illegality of the tax and the threatened sale of the shares for its payment constitute of themselves alone no ground for such interposition. There must be some special circumstances attending a threatened injury of this kind, distinguishing it from a common trespass, and bringing the case under some recognized head of equity jurisprudence before the preventive remedy of injunction can be invoked. It is upon taxation that the several states chiefly rely to obtain the means to carry on their respective governments, and it is of the utmost importance to all of them that the modes adopted to enforce the taxes levied should be interfered with as little as possible. Any delay in the proceedings of the officers, upon whom the duty is devolved of collecting the taxes, may derange the operations of government, and thereby cause serious detriment to the public. No court of equity will, therefore, allow its injunction to issue to restrain their action, except where it be necessary to protect the rights of the citizen whose property is taxed, and he has no adequate remedy by the ordinary processes of the law. It must appear that the enforcement of the tax would lead to a multiplicity of suits, or produce irreparable injury, or where the property is real estate, throw a cloud upon the title of complainant, before the aid of a court of equity can be invoked. In the cases where equity has interfered, in the absence of these circumstances, it will be found, upon examination, that the question of jurisdiction was not raised, or was waived.”

In Wells v. City of Buffalo, 80 N. Y., 253 an action to set aside an assessment, as a cloud on title, on the ground that the act 'under which the assessment was laid was unconstitutional, the court, by Rapallo, J., say; “The sole ground upon which the assessment is sought to be set aside being that the act authorizing it is unconstitutional, this action cannot be maintained. If the act is unconstitutional no assessment imposed under it can be a cloud upon the plaintiff’s title. It is void upon its face. If the act is constitutional the assessment is valid. In either case, therefore, the complaint was properly dismissed. The judgment should be affirmed, with costs.”

In the case of State v. Aloe 152 Mo. 471, the court says: “The returns of the Judge and the plaintiffs in that suit are to the effect that the circuit court is a court of general jurisdiction in law and equity, having jurisdiction in that kind of cases with power to issue injunctions and that the act of 1899 was unconstitutional, and therefore in the case made by the plaintiff’s petition the court had authority to issue the injunction as it did, and in doing so did not transcend its jurisdiction, and for that reason, if the relators are aggrieved, they have a remedy by further proceedings in that court or by appeal on final judgment. * * * When the judiciary undertakes to pass judgment on an act of the legislature in the light of the constitution, it exercises the highest function of goverment known under our free institutions. In such case, parties and counsel may aid the court in its search for truth, both as to facts and law, but the responsibility for its findings and conclusions is upon the court alone. * * * When the validity of a statute is drawn in question, the court approaches the subject as one involving the gravest responsibility, and to be considered with the greatest caution. The general assembly is presumed to have been as careful to observe the requirements of the constitution in enacting the statute as the court in applying it. Every presumption is to be indulged in favor of the validity of the act, and that presumption is to continue until invalidilty is made to appear beyond a doubt. But in the case at bar these presumptions seem to have been reversed by the circuit judge, the statute held prima facie invalid, the will of the Legislature blocked before it could take effect, and the officers appointed forbidden to put themselves in position where they could as officers defend it. * * * The real and only purpose of the suit in the circuit court was to bar the entrance to the office of board of election commissioners by injunction, and to obtain a decree of a chancery court declaring relators’ title to the office invalid. That is a subject over which a chancery court has no jurisdiction. The courts of law are open to all persons who have rights of that nature which have been violated, and ample means are afforded in those courts for the vindication of such rights and the redress of their wongs. It is said in support of the injunction, that since no one was in possession of the office, there was no one against whom a writ of quo warranto could be directed. But the petition in that case stated that these relators were about to enter into the office and would, do so if unrestrained, as soon as the act of the legialature should go into effect. Whilst the main virtue of an injunction is to anticipate and prevent a threatened wrong which if committed a court of law could not adequately redress, yet a court of chancery can not in excursions beyond its domain produce conditions to make jurisdiction for itself by forestalling events which would if left alone have no more injurious effect than to land the case in a court of law, whose process is equal to the emergency.”

Many of the questions here presented are ably discussed in an opinion by Judge Wilson in Wason v. Major, 10 Colo. App. 181.

In this case the judge of the district court, in an ex parte proceeding, in a suit which had for its sole object an injunction against certain officers, granted a temporary writ of injunction restraining the board of assessors from performing certain duties which by law they were required to perform. He has, by so doing, prevented the board from performing one of the most important functions of the government of this state, namely, that of assessing the railroad, telegraph, and telephone properties, and certifying their assessment to the various counties of the state. An appeal from this order does not, as he correctly says in his return to the alternative writ, suspend the injunction, but the injunction remains in force until in ordinary course the judgment is reversed. The revenue of the state will be diminished, and the end sought (the prevention of any assessment of the property of these companies) will be attained before the question can be finally determined. The au-' thorities which we have quoted convince us conclusively that it is not within the power of a court of equity thus to arrest the action of the state board of assessors and, as an initial step, to grant the relief which the petitioners seek. The duties which these officers perform, as has been held by some authorities, are quasi judicial in their character. They are vested with a discretion in many matters, and while some of their duties may be considered ministerial, their entire duty is judicial or executive; and it is, as we understand it, the almost universal rule in this country that such duties can not be restrained by injunction.

To meet the requirements of the law that the case must be made under some of the well-recognized heads of equity jurisprudence, in addition to alleging that the act is unconstitutional, the respondents alleged: That if the said board is allowed to go on and make the statements and ratable distribution and shall transmit the assessments and statements to the various county clerks and cause a tax to be levied, such levy or tax based upon such assessment will cause great and irreparable damage to them, and will subject them to great cost and damages, and that a suit at law to recover of any or all of the defendants, or any or all of the counties in which the tax may be levied, would be wholly inadequate,— because the members of said board have no property with which to pay any judgment which might be recovered against them as damages; because if they had property, it would be necessary to bring suits in various counties, which would result in a great multiplicity of suits and costly and vexatious and long-continued litigation; because said levy would constitute a lien upon their property until discharged by payment or sale, that it would be a cloud upon their title, would embarrass them in business and impair and diminish the value of their property, from which they could only be relieved by the payment of the taxes or by long and vexatious litigation instituted and carried on by them; because suits cannot be maintained against the counties until the taxes are paid, and in case the taxes were declared-void, to recover the money paid and for damages many suits would have to be brought; because the damages from the said illegal acts would be so great that the remedy at law would be wholly inadequate.

The plaintiffs say that suits brought against the state board of assessors and the various counties for damages would be vexatious; with this statement, inasmuch as it meets with our cordial indorsement, we will not take issue. By their own statement, suits against the members of the state board of assessors would be unavailing, and this court has held that actions against the counties for damages cannot be sustained; therefore the only great number of suits to be brought, if the state board of assessors is .permitted to perform its duties, are suits to recover the taxes paid. Unless we are to assume that the property of these corporations is exempt from taxation, no more litigation will result from an assessment by the state board of assessors under the act of 1901 than by an assessment in any other way. Under the law as it existed prior to 1901 these corporations would be compelled to bring suits in the various counties to recover money illegally exacted for taxes; and there is no reason apparent in the complaint for an injunction against the state board of assessors that does not apply with equal force to the revenue laws as they existed prior to 1901 except ,that the law of 1901 is alleged to be unconstitutional. The plaintiffs claim that great and irreparable damage will result if the state board of assessors is permitted to make the assessment and certify the result; the only damage shown in the complaint is that a different mode of assessment is prescribed by the law of 1901. If the state board of assessors has assessed the property of each corporation at its full cash value (as required by the law of 1901 as well as the prior laws), no irreparable damage will result to the plaintiffs because of the manner in which the assessment is made. But, they say, the acts of the assessors are illegal and will cast a cloud upon the title of their property; this is not true, even assuming that a tax levy casts a cloud, because these assessors do not make the levy; the levy is made by other officers, the board simply values the property for the purpose of taxation. No cloud is cast upon the property of these plaintiffs either by the assesment or by the levy, for this court has held that a cloud is not cast upon the title to one’s property until after a tax deed is issued and recorded. We are unable to see how these corporations will suffer irreparable damage because of the acts complained of; they must pay taxes, and must pay now, upon the full cash value of their propepty. The fact that a different board is to value their property cannot work irreparable injury to them. They are the creatures of the state, the state affords them protection, and they must bear their full share of the burdens of government. They may have some good reasons for preferring to have their property assessed by a board composed of a small number of persons rather than by a body of a larger number, but the reason does not appear in the pleadings. Assuming everything they allege as invoking the aid of equity to be true and established,—the multiplicity of suits to be avoided, the wholly inadequate remedy at law, the cloud upon their title, the irreparable damage,— overshadowing these reasons for granting the writ is the damage, the injury, the mischief, the wrong, the injustice, which must result to Colorado and to her people if the injunction is permitted to stand.

We are forced, therefore, to the conclusion that the judge of the district court had not jurisdiction of the subject-matter, namely, the issuance of an injunction to prohibit the state board of assessors from performing their duties, and that in granting the temporary writ of injunction he exercised an unwarranted interference with a board -which is a part of the executive branch of the government of this state; and such act, being beyond his jurisdiction, is null and void.

The respondent says he has no interest, direct or indirect, proximate or remote, in the litigation, nor has he any desire or preference as to the outcome other than that justice be done according to law; and that in all his acts he has been impelled solely by a desire to observe his oath of office and perform his duties. This we should have known and believed without his verification; and while our views are radically different in this case, we trust we shall have always, as we have now, great respect for the district court of Pueblo and for the judges thereof.

For the reasons given, the alternative writ of prohibition is made perpetual and the respondent court is directed to dismiss the cause.