The Delta independent., 1902-07-25
REPLY OF SMELTERS.
COURT lacks JURISDICTION.
American smeIter Company Files Ita
Brief in the Suit Begun by Attor--
ney General Post in the Supreme

Brief In the Suit Begun by Attor-
ney General Post in the Supreme
Court.
Denver. July 19-Attorneys Wolcot..
Vale & Waterman, for the respondents
in the case of the people of the state
Of Colorado upon the relation of
Charles G. Post, attorney general,
against the American Smelling and Re
filming Company and Others, have filed
their brief with the clerk Of the Su-
preme Court, objecting to the request
Of the attorney general that the Su-
preme Court OF the state take original
jurisdiction in the case.
The brief in reply to the attorney gem
erals allegations says:
at would appear from the typewrit-
ten petition attached to the proposed
complaint that the Attorney general
considers that he is applying for writ
of quo warranto against the respond
ents, although we respectfully submit
that in the printed bill of complaint
there is nothing to suggest quo war
ranto proceeding. But inasmuch as 1t
is apparent that this proposed action
cannot be instituted in this court as an
original proceeding unless 1t be deemed
an Information in the nature OF quo
warranto. we shall assume that II suf-
ficiently complies with the rules Of law
applicable to quo warranto proceed
ings. and shall treat II as an applica-
ton of that character"
The brief goes on to say that this il
At M
the matters complained OF do not re-
late to the usurpation of any franchise
nor to any matter to be resolved by the
construction of corporate charters. The
respondent corporations are not en-
gagged In any business OF n public char
acter. do not exercise any right OF cmi-
nent domain nor transact any business
depending upon any public franchise.
They render personal service. that Ia
the reduction of ores for compensation.
Nor Is II practicable for the respondent
corporations to affect the prices OF re-
snltant commodities. II Is alleged In
the complaint of the attorney general
that the respondent corporations charge
eNorbitnnt prices for the reduction OF
ores. But II Is apparent from the in
spection of the complaint that the CON-
plant shall withstand n demurrer. and
an issue Of fact. and not upon the con-
struction OF any law or charter. and tho
acts complained OF ":are acts which. "
unlawful at all. would be equally SO II
committed by individuals. They do not
inhere in the corporate existence OF the
respondents. and do not depend for
their validity upon the exercise OF any
corporate right.
''If this court should entertain tnr-
isdiction Of this cause then there must
be first determined the issues OF law
arising out of the question OF the suf
ficiency OF the complaint. II this Is re-
solved In favor OF the petitioner. then
issues OF fact are TO be made, with nll
the Incidents OF n trial OF fact. lnclud-
ing submission and rulings upon evil
dence. trial by jury. motions for new
trial. etc. and II is manifest that the
machinery OF this court Is not adapted
for such nn inquiry"
Continuing. the brief says tina, re-
spondenis would deny In case the mat
ter came before n jury that there was
any conspiracy between any Of the re-
spondents, that they would deny that
the respondents Ind created n new cor
poration. to-wlt. the American Smelt.
Ing and Refining Company. for the pur-
pose OF tnking over to Itself other cor
porntions. and that II would ndmlt that
the American smelling aud Refining
Company had taken over the respond.
ent companies. but that II would be
denied that II was done on any pro
rata share OF the capitalization OF the
capital stock OF the American Smelling
and Refining Company. II would be
denied that the respondents had used
unlawful methods. charged eStOrtion-
NJ nrf hug har huI rt.I,
rangemenis with railroads. that they
had declined to receive valuable ores
for treatment.
The brief goes on to say that if there
~ need OF n speedy decision In tho
matter II IL strange. ms the alleged COM
bination II Mt least three years old and
has been open and notorious for that
length OF time. There Is no emergency
In the situation, and there has been
no Increase OF hardship. The argument
that the attorney general makes, that
he should appear In this court and
not in the District Court because the
people OF the state are Interested. Ia
fnllncious. The District Courts OF this
STATE are manlfestly open for the pros
ecution OF quo wnrrnnto. and II the
attorney general cannot appear In the
case the law has made nm officer to do
court should not consider this case for
original Jurisdiction merely to avoid a
multiplicity OF suits. for this IL not a
ground for such an action.
Under the second heading the brief
INSERTS that even n there were no qucs-
tlon rs to the Jurisdiction OF this court,
ana If It's Jurisdiction were ns broad
as that OF the District Court. yet this
court should not permit this complaint
to be filed. This proceeding Is not
based on any statute, but It must be
based upon something and that must
be the common law. But all law and
public policy says that the right to the
formation OF such n combination ~
mentioned Is distinctly recognized and
upheld by our statutes. The rights OF
corporations TO consolidate under our
laws have never been disputed. And
I'm fnct tho stntutau unaciNroIiv ro,ny