Whipple v. Stevenson ( 1898 )

Mr. Justice Gabbert

delivered the opinion of the court.

It will be observed that the question which petitioner seeks to have determined in this proceeding, is, which of the respective factions is entitled to the name and emblem of the Silver Republican party? When the petition was first presented on application for rule to show cause why the court should not take original jurisdiction, counsel for respondent Broad strenuously insisted that the questions involved were such that this court could not take jurisdiction of the action; and while in answer to the rule they do not admit that the court can assume jurisdiction, they did state in oral argument, at the time when this question was presented, that it had, but insisted that it should not be exercised for the reasons suggested in their answer. Jurisdiction cannot be conferred by consent, Filley v. Cody, 4 Colo. 109, for the law alone can confer jurisdiction over the subject-matter of a cause: Molandin v. Colo. Central R. R. Co., 3 Colo. 173; McKinnon v. Hall, 24 Colo. 391; and want of jurisdiction will be noticed sua sponte, though the question is not raised by the parties : McKinnon v. Hall, supra ; so that, notwithstanding the attitude of the parties on the question at this time, it is still proper and necessary for this court to determine.

Jurisdiction, as applied to a court, is the power to hear and determine a cause: Bouvier; Bassick N. Co. v. Schoolfield, 10 Colo. 46 ; and unless it is clothed with such power over the subject-matter of the action and the parties, its proceedings in that particular cause will be void: 12 Enc. of Law, 311; and, therefore, the question becomes one of prime importance in this case. By the constitution, the jurisdiction of this court is limited to appellate, and a general supervisory control over inferior, courts, except such original jurisdiction as is thereby specially conferred. Secs. 2 and 3, art. VI, Const.; Wheeler v. N. C. I. Co., 9 Colo. 248. Section 3 of the constitution provides, that this court shall have power to issue certain specific writs, among which is included that of injunction, and is also empowered to issue “ other original and remedial writs.” It was clearly the intent of the framers of the constitution to limit the original jurisdiction of this court to those cases in which the writs thereby contemplated might issue; and unless a given case is of that character that one of such writs may issue, this court is without power to entertain it in the first instance. Wheeler v. N. C. I. Co., supra ; People v. McClees, 20 Colo. 403 ; Foster v. Moore, 4 Pac. Rep. 850; King v. Hall, 66 N. W. Rep. 642; State v. Archibald, 66 N. W. Rep. 234. Such being the rule by which to determine the original jurisdiction of this court, it only remains to ascertain whether or not the cause is of that character that any of the writs embraced within the section of the constitution defining its original jurisdiction, may issue.

Petitioner prays that pending the final determination of this action, each of the respondents, their agents and associates, and the subordinate organizations of the respective factions and their nominees throughout the state, be' enjoined from further contesting or litigating over the questions involved, and that on final hearing such injunction be made perpetual, as against the unsuccessful respondent, his associates and the subordinate organizations of his faction and their nominees. Petitioner institutes this action in his official capacity. It was said in argument, that his petition was in the nature of a bill of interpleader, but it has none of the elements of that character of action. True, according to the averments of the petition, both parties are claiming the same name and emblem, but the law imposes upon him, as a tribunal, the duty of determining which is entitled to the subject-matter of the controversy, and he is not, therefore, in the attitude of having conflicting claims made to a subject in dispute in his possession, in which he has no interest and in relation to which he is under no obligation to either party; and, therefore, he is not entitled to an injunction, either temporary or permanent, enjoining the respondents from litigating the question as to which is entitled to the name and emblem of the party, in so far as it depends upon the two state conventions, or pursuing that method of procedure which the law provides for the determination of disputes of this character, and therefore, no facts are pleaded which entitle him to maintain this action as against either of the respondents, in so far as the questions involved depend upon the proceedings of the two state conventions, and if this action should be permitted to proceed, it would be one at law between the respondents, in which the one question to settle would be, which is entitled to the name and emblem of the Silver Republican party, a question petitioner has already settled in so far as the law imposes upon him that duty, and to review which ruling upon his part, an action is now pending in the district court of Arapahoe county. A determination of this case would he limited to the rights of the respective respondents to the name and emblem of the party only so far as such determination was based upon the facts relating to the two state conventions, and would not necessarily settle others Between these parties over nominations made by the subordinate organizations or conventions of the respective factions, for every case of this character must be determined according to its own particular facts, and on the case presented, respondents, as between themselves, would not be entitled to a writ of injunction, either preliminary or permanent, in any man- ' ner affecting or enforcing their rights to the name and emblem of the party upon the state ticket; and for the reasons already given, that nominations for subordinate positions on the official ballot under this name and emblem in case of a' controversy in relation thereto, may be determined independent of any action of the state conventions, no such writ could issue in regard to these matters; and although petitioner prays for the issuance of such other appropriate writs, either temporary or permanent, as shall seem meet and proper, in order to grant relief in the premises, no writ is suggested by counsel other than that of injunction, which could be issued in this case; and as such writ cannot issue at the instance of either of the parties to this action, for the purpose of enforcing the rights of the successful party to the subject-matter in dispute, if such right was determined by this court, nor any other writs embraced within the provisions of the constitution, it follows that the case presented is not one of which this court can take original jurisdiction.

Petition dismissed.

Goddard, J., dissents.