The Elbert County tribune., 1909-05-20
SUPREME COURT DECISION

0OA ANA<hA WYNN DASA0AOlN
The People OF the State of Colorado, ex
rel. Emile Pauls and Jacob Brazelton,
Petitioners.
The District Court of Elbert County,
Colorado, and Hon. John W. Sheafor,
Judge, Respondents.
B. G. billiard, for Peti TONERS.
Henry Trowbridge, for Respondents.
ORIGINAL APPLICATION FOR WRIT OF
PROHIBITION
Justice Bailey delivered the opinion Of
the court:
This is an original application for a
writ Of prohibition against the district
cour. of the Fourth judicial district and
the Honorable John w. Sheafer one of
the judges thereof, from proceeding
further in an injunction suit there pend
ing, wherein the relator Pauls has been
enloined from acting as a county COM
missioner Of Elbert county. Upon the
petition filed, an alternative writ to show
cause issued, to which by way of return,
the respondent judge interposed an an
swer and supplemental answer, and upon
the demurrers Of the relators to these
answers, the application is submitted.
The undisputed facts disclosed by the
records here are substantially these.
One Oloff Olson had been four years pri-
or to the 11th day of January, last, one
of the commissioners of Elbert county.
At midnight Of that day his term of Of
fee expired by limitation as did also
that of one Horace e. Brooks, another
member of the board who, however, was
elected and duly qualified to succeed
himself. The relator, Emile Pauls, was
n 70 nc mis-
er at the general election held in Novem-
ber, 1908, as officially held by the regu-
lar canvassing board and received his
formal certificate to that effect on the
18th day of said November month. On
December 10, next thereafter, he took
the oath of Office prescribed by law and
on the 18th day OF said last mentioned
month lodged in the Office of the CO unity
clerk of said Elbert county his official
bond, which had been Heretofore, and
on the 11th day Of December, duly ap-
proved by the Honorable John W. Sheaf-
or, one of the judges Of the judicial dis
trict in which Ebert county is located,
and respondent here. The relator, Emile
Pauls, in conjunction with the relator
Brazelton, who is duly qualified and
acting commissioner of said Elbert coun-
ty, met as such board on February / of
this year, elected the relator Pauls chair
man thereof, otherwise organized the
same and transacted much county bus
mess, adjourning said February meet
ing until the 10Th day of March follow
ing. The said Commissioner Brooks re-
fuses to recognize the relator Pauls as
commissioner and is doing and attempt
ing to do the public business of said
county in conjunction with said Olson,
claiming to constitute quorum of said
board. That the Commissioner Brazel-
ton refuses to recognize said Olson as
commissioner, and refuses to act with
Commissioner Brooks in conjunction
with said Olson in transacting county
business. At the March 18th meeting
and on the 9th day Of the same month,
further temporarily restrained the relat-
or Pauls from doing or attempting to do
any act purporting to be an act OF a
commissioner of Elbert county and the
relators, Brazelton and Pauls and each
of them from taking possession of the
Office of the said board and further act
ing as board or quorum of a board of
county commissioners of said Elbert
county and from doing or attempting to
do any act as board of commissioners
of said county.
On this state OF facts the district court
is without jurisdiction IN equity. The
relator Pauls is already in office and has
begun the actual discharge of the duties
imposed on him by virtue thereof. When
Pauls had duly qualified and the hour
of midnight on January IL, 1909, had
come, Olson was Internationally out as
commissioner and by no process could
he be rehabilitated in office.
On like state of facts this court in
the case The People ex rel Williams VS..
Reid, unequivocally SO held. If this be
true, then the respondent judge was and
is without power or authority to disturb
or interfere with him by injunction, in
the discharge Of his duties, which de-
volve on him in his official capacity
On the other hand, il upon any posi-
BILE theory, and we confess to being un-
able to discover one even of plausibility,
it is claimed that Pauls is out of office
and Olson in, then the respondent judge
was equally without jurisdiction, because
such contention involves the question of
right to the office, which may not be law
fully determined in an equitable action.
To be sure, the respondent disclaims
any intention to determine the right to
the office, but protest as he may, what
is the effect OF the injunctive writ except
to place into office the man Olson, who,
upon the undisputed facts, has neither
right to nor claim upon it, either de jure
or de facto and to enjoin out of the Of
flee the relator Pauls, who, again upon
the undisputed facts, has been duly
elected thereto, has received the proper
certificate to that end, and has taken the
prescribed oath and possession of the of
flee, having first given the required bond,
duly approved by the authorized author
ity, which authority happens in this case,
strangely enough, to be indentical with
that which now seeks to epjoin him out
1t is keenly to be regretted, in light OF
the Hinkley case, supra, supported by
such sound reasons, SO lucidly and lu-
minously stated. that trial courts still