Aichele v. Johnson , 30 Colo. 461 ( 1902 )

Per Curiam.

Two principles or rules have been firmly established in this jurisdiction; one that a writ of prohibition, being a discretionary writ, will not go •where there is an adequate remedy at law) the other, that a writ of error is an ample and appropriate rem,edy for the review of a judgment imposing a penalty ■for contempt of court.

Upon the first proposition two late cases in this court are directly in point. In People v. The District Court, 29 Colo., 1 (66 Pac., 888), it was said: // The writ of prohibition is not one of right. It may issue in extraordinary cases in the exercise of a sound .discretion of the court to which the application therefor is addressed, but .never where the . ordinary remedies by law are applicable and adequate. Neither should! it be. permitted to. supersede thé ordinary functions of an appeal or writ of error. ” .

In People v. The District Court, 29 Colo., 83 (66 Pac., 1068), in somewhat different phraseology, the same thought is thus expressed: “The granting of the writ of prohibition rests in the sound discretion of the court. The writ is not a writ of right, and it cannot be converted into a writ of error. * * * In eases-where it appears that the lower court had no jurisdiction, the writ will not go, if, in the opinion of the court, the complainant has an adequate remedy at law. ”

Concerning the second poposition, it was said- in Cooper v. The People, 13 Colo., 337, 354, that our code provision making, a judgment in cases of contempt final and conclusive has no reference to the mode of review, but that it must be construed as a limitation upon the authority of the.supreme court "in contempt proceedings to extend its inquiry beyond the question of the jurisdiction of the court below. And it was further said that, “The remedy by writ " of error, however, as we have it, has been found ample to meet all cases, as it furnishes a remedy-when either of the other writs might have been resorted to.”

In Wyatt v. The People, 17 Colo., 252, 256, in .an opinion by Mr. Justice Helm, the court remarked that where imprisonment is being suffered, habeas corpus is the usual procedure for inquiring into the question of jurisdiction. But he also said in that connection, that by a writ of error the same inquiry might be had and that “the latter method of procedure possesses decided advantages over.the former, and jurisdiction in cases pending on error for review, is always a pertinent inquiry;” and concluded. with ...this .'.observation-: “The" practice has been • recog- -. nized.in a number, of other cases and may now be. jegarded as firmly established in this state.” In still other and subsequent cases this court has placed itself in line with the later decisions of the supreme court of the United States, and concluded that the better practice is to put the complaining party to his remedy by writ of error rather than to award him a writ of habeas corpus, or some other extraordinary remedy, when the same questions may be investigated by each. — In re Tyson, 21 Colo., 78; People v. District Court, 26 Colo., 380, 385.

Since, therefore, in the review of a judgment in contempt proceedings the only subject of inquiry for a reviewing court is the question of the jurisdiction of the court below and that question may be as fully and completely investigated on a writ of error as in a proceeding by prohibition, in the absence of* special circumstances, there is no reason for awarding the latter.

Not only is there an absence of such special circumstances here, but petitioner’s course of conduct has not been such as to invoke the exercise of a discretionary power by a tribunal of justice. He was afforded an opportunity by this court to present and have heard his application for a writ of prohibition before the election was held, but for reasons satisfactory to himself declined to avail himself of that opportunity, but delivered to the election judges after service of the injunctive writ copies of the lists which he says were theretofore made, though he protests this was not a violation of the order. He is, therefore, because of such delay and deliberate choice of action in disregard of an injunction, not In a strong position to invoke the discretion of this court in now demanding the extraordinary relief prayed for. But the remedy by writ of error is so peculiarly appropriate for investigating the questions he seeks to raise, 'and the relief, if he is entitled to any, which may therein be awarded is so ample, that petitioner, should he remitted to the ordinary remedy which the law gives.

The petition is denied and the proceeding dismissed.

Writ denied.