Gilpin observer., 1902-07-24
REPLY OF sMELTERs
COURT LACKS JURISDICTION;


Denver. July 19.-Attorneys Wolcott.
VaiIe & 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-
fining 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:
1T would appear from the typewrit-
ten petition attached to the proposed
complaint that the attorney general
of quo warranto against the respond
ents, although we respectfully submit
that in the printed bill of complaint
there is nothing to suggest a quo war
ranto proceeding. But inasmuch as it
is apparent that this proposed action
cannot be instituted in this court as an
original proceeding unless it be deemed
an information in the nature Of quo
warranto, we shall assume that it suf-
ficiently complies with the rules of law
applicable to quo warrantO proceed
ings, and shall treat it as an applica-
ton of that character"
The brief goes on to say that this is
not a summary proceeding. and that
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 a public char
acter, do not exercise any right of emf
nent domain nor transact any business
depending upon any public franchise.
They render personal service. that is
the reduction of ores for compensation.
Nor is 1t practicable for the respondent
corporations to affect the prices Of re-
sultant commodities. 1t is alleged in
the complaint of the attorney general
that the respondent corporations charge
eXorbitant prices for the reduction of
ores. But it is apparent from the in
spection of the complaint that the CON-
plant shall withstand demurrer and
then the controversy would turn upon
an issue Of fact. and not upon the con-
struction of any law or charter. and the
acts complained of ":are acts which, II
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 FUR
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. If this is re-
solved In favor of the petitioner. then
issues of fact are to be made, with all
the incidents of a trial of fact. includ-
ing submission and rulings upon evil
dence, trial by jury. motions for new
trial. etc. and it is manifest that the
machinery of this court is not adapted
for such an inquiry"
Continuing, the brief says that re.
spondents would deny in case the mat.
ter came before jury that there was
any conspiracy between any of the re-
spondents. that they would deny that
the respondents had created n new cor
poration, to-wit, the American Smelt-
Ing and Refining Company. for the pur-
pose OF taking over to itself other cor
porations, and that it would admit that
the American Smelling and Refining
Company had taken over the respond
ent companies, but that it would be
denied that it was done on any pro
rata share of the capitalization of the
capital stock of the American Smelling
and Refining Company. 1t would be
denied that the respondents had used
unlawful methods. charged extortion-
ate prices, that they had certain ar
rangements with railroads. that they
had declined to receive valuable ores
for treatment.
The brief goes on to say that IL there
rs need of speedy decision in the
matter 1t Is strange. as the alleged COM
binatiOn Is at 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, is
fallacious. The District Courts of this
state are manifestly open for the pros
ecuti0n of quo warranto, and if the
attorney general cannot appear in the
case the law has made an officer to do
so and he is the district attorney. The
court should not consider this case for
original Jurisdiction merely to avoid,
multiplicity of suits. for this is not a
ground for such an action.
Under the second heading the brief
asserts that even If there were no ques-
tion as to the Jurisdiction of this court,
and IL it's Jurisdiction were as broad
as that OF the District Court. yet this
cOIlrt ahOlI1I NOT nnrfnit thto nj NJ
to be filed. This proceeding is not
based on any statute. but 1t 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 combination as
mentioned Is distinctly recognized and
upheld by our statutes. The rights Of
corporations TO consolidate under our
laws haYe never haen disn1ied And