Martin v. Simpkins

Mr. Justice Elliott delivered the opinion of the court. The motion to dismiss the writ of error in this case calls for a further consideration of the “ Act to Provide for Contiguous Towns and Cities to Become Annexed.” See Session Laws, 1893, p. 451. In Mayor and Trustees of the Town of Valverde v. Shattuck, — 442 — 19 Colo. 104, certain proceedings of the county court under said statute were reviewed and reversed by writ of error from this court. There was no motion to dismiss or quash in the Valverde Case, nor was any objection to the review by this court interposed by either party. As counsel say, the writer of this opinion, during the argument of that case, “ suggested a doubt whether the writ of error would lie to the order of the county court then complained of; ” but the doubt was whether such order or judgment was final. No doubt was entertained of the authority of this court to review that proceeding in some manner, at some stage. The court concluded to review the order complained of in that case, because in a certain contingency and in a certain sense it might be considered final. By the terms of the statute it is only in case a majority of the ballots cast are “ for annexation,” that the county court is required to take action after making the order requiring an election to be called. It is true, the statute does not provide for an appeal or writ of error to review the proceedings of the county court had or taken under its several provisions; neither does it forbid such review. There is some force in the contention that the delay incident to a review of the proceedings by ail appellate court may cause inconvenience. But objections on the ground of delay are not controlling. They may be urged in various kinds of judicial proceedings, and yet the necessity for review, in most cases, far outweighs such objections. The rights of parties are more important than haste; hence, appellate tribunals are provided in our judicial system. 1. Our constitution provides: “Writs of error shall lie from the supreme court to every final judgment of the county court.” The county court act provides: “ Writs of error shall lie from th'e supreme court to every final judgment or decree of any of the county courts, and shall be prosecuted and disposed of in the same manner as writs of error to the final judgment or decree of the district court.” Whatever may be the ordinary status of the writ of error in our juris — 443 — prudence, it is certainly a constitutional writ of right from the supreme court to every final judgment of the county court; and, though subject to reasonable regulation, the writ cannot be abolished as to such judgments, nor can its scope or office be materially impaired while such constitutional provision remains. Const., art. 6, see. 3; Gen. Laws, 1877, chap. 23, sec. 8; Gen. Stats., sec. 502; 1 Mills’ An. Stats., sec. 1091; People v. Richmond, 16 Colo. 280; Haley v. Elliott, ante 379. 2. Counsel for defendants in error do not claim that the order approving the annexation proceedings in this case is not final; on the contrary, they claim that it is both final and irreversible; in short, that the order is not a judgment. Their contention is, that the words “every final judgment,” as used in the constitutional provision above quoted, refer only to “ such final judgments as may be rendered in ordinary actions at law, or suits in equity.” The approval of the annexation proceedings by the county court is, by the record in the present case, denominated an order instead of a judgment. In strict legal parlance, an order is a judgment, though the term is usualty applied to some interlocutory decision by the court, rather than to its final judgment in an action or proceeding. In the present case, however, the order is expressly termed a “ final order; ” besides, its conclusion is in the usual phraseology of a final judgment,ordered, adjudged and decreed.” But names and forms of words signify little. The material questions are: What was the real character of the proceedings now sought to be reviewed ? What was the essential nature of the court’s “final order?” Was the proceeding judicial? Was the court’s “final order” its final judgment in such proceeding ? The line of demarcation between judicial and ministerial acts is not always easy of discernment; in fact, the distinction between such acts is often more arbitrary than real. Ministerial as well as judicial officers in the discharge of their official duties are required to interpret and apply the law to — 444 — the facts and circumstances before them. This much, however, may be safely said: When a regularly constituted court of justice is clothed with authority to hear and determine a question of fact, or a mixed question of law and fact, upon evidence, written or oral, to be produced before such court, and thereupon to render a decision affecting the material rights or interests of one or more persons or bodies corporate, such proceeding by the court must be regarded as judicial, and the decision by the court may properly be denominated a judgment. According to Blaekstone, “ judgments are the sentence of the law, pronounced by the court upon the matter contained in the record.” In Cooper v. Am. Cent. Ins. Co., 3 Colo. 321, Mr. Justice Elbert, delivering the opinion of this court, said: “A judgment is the sentence of the law pronounced by a court of competent jurisdiction, as the result of proceedings-instituted. It is a judicial act, and to be valid must be pronounced by the court, at a time and place appointed by law, and in the form it requires. In the case of Skinner v. Beshoar, 2 Colo. 385, it was held that error will lie to review what assumes to itself the force of an adjudication in law, although upon the face of the record it majr want the essentials of validity.” See opinion in the latter case by Mr. Justice Wells; also, Am. & Eng. Ency. of Law, 59. In Sloan v. Strickler, 12 Colo. 181, which was a writ of error to review an order or decree of the county court in proceedings for the sale of the real estate of a deceased person, this court said: “ Since the adoption of the constitution (art. 6, sec. 23) and the passage of the county court act (Gen. Laws, chap. 23, sec. 8), which went into effect June 20,1877, there is no longer room for reasonable doubt that writs of error lie from the supreme court to every final judgment or decree of the county courts, including cases of this kind.” See, also, Unknown Heirs of Langworthy v. Baker, 23 Ill. 484; Schlattweiler v. St. Clair Co., 63 Ill. 449; Peak v. People, 76 Ill. 289. The foregoing definitions and views are certainly compre — 445 — hensive enough to include orders and decisions in special proceedings, as well as judgments in ordinary civil and criminal actions, provided, such orders or decisions be made by the court in a proceeding instituted and pending before the court. 8. The proceeding which the statute requires shall be instituted; carried on and consummated, as the means of dissolving one municipality and annexing the same to another; is unquestionably a special statutory proceeding as distinguished from an ordinary action at law, or suit in equity. But is it a judicial proceeding? Or is it merely ministerial? It is manifestly a proceeding in the court and by the court. The proceeding is required to be commenced by filing a petition in the clerk’s office of the county court. The petition must contain certain requisites and must be accompanied by an affidavit showing certain facts, which petition and affidavit are made prima facie evidence of the matters therein set forth. Upon the filing of such petition it is provided that the court shall make an order providing for the submission of the question of dissolution and annexation to a vote of properly qualified electors. See sec. 2. The election having been held and the ballots canvassed, if a majority of the votes cast be “ for annexation,” a report of the same duly signed and attested is required to be filed in the clerk’s office of the county court; and thereupon the court is required to examine the same and hear any evidence that ma}'- be offered concerning the regularity or irregularity of the proceedings, and, if satisfied that the proceedings are regular, to approve the report. The effect of such approval is that the town or city previously existing under general law shall be dissolved, and that its territory shall become annexed to, and a part of, the city existing under special charter. See sec. 8. A careful consideration of the proceedings thus provided for compels the conclusion that they are judicial proceedings. It is for the court to examine and determine, in the first instance, whether or not a proper petition has been presented, filed, and verified. The affidavit of verification is made — 446 — prima facie evidence only. This indicates that the facts therein stated are open to contradiction by parties interest- ■ ed in opposing the institution of the proceeding. The making of the order requiring the municipal authorities to submit the question of dissolution and annexation is clearly a judicial act. Before making the order, the court must examine and determine that the petition is such as the statute requires. So the requirement that the court shall examine the report of the proceedings of the town board or city council of the municipality sought to be dissolved and annexed, including the result of the election, and to hear evidence concerning ■ the regularity or irregularity of the proceedings, clearly indicates that there must be a judicial examination and determination of the question whether the proceedings to dissolve one municipality for the purpose of annexing its territory to another have been properly conducted. So, also, the provision that the court shall approve the report, if satisfied that the proceedings have been regular, clearly implies that the court may not, upon such examination and hearing, be satisfied that the proceedings have been regular, and that, if not so satisfied, it should not approve the report. Thus it appears that the question of dissolution and annexation is by the very terms of the statute committed to the decision of the county court upon matters to be presented, examined, heard, considered and determined hy such court. The court is not only required to examine the documentary evidence presented, but to hear and weigh any oral testimony that may be produced, and thereupon find to its satisfaction whether the annexation proceedings have been regularly conducted in accordance with the law. Having done this, the court is to approve or disapprove the report concerning annexation. It must be conceded that, in a proceeding of ■ this kind, as in every other of which it has jurisdiction, the ■ court is bound to act according to the very right of the matter under the law applicable to the evidence. Surely such doctrine is applicable to the judicial forum, and familiar to the judicial mind. The very language of the statute, when — 447 — properly analyzed, clearly stamps the proceeding as judicial. The effect, also, which the statute gives to the approval of the report is, in every respect, a most important judgment. It is a judgment which dissolves a municipal corporation, deprives it of its franchises, annexes its territory to another municipality, and which may subject its inhabitants to increased taxation and other additional municipal burdens. It may be, as counsel suggest, that proceedings under the statute might have been committed to some other tribunal or officer than the county court. But we cannot agree that it was the intention of the legislature that there should be no review of the proceedings of the county court in such cases; nor that the ends of justice and good government require that the action of such court in such cases should not be subject to review by the higher courts. Counsel suggest the point that the statute does not expressly require the county court’s approval of the report of the annexation proceedings to be in writing. This does not militate at all against the view that the proceedings before the court are judicial. Courts at nisi prius usually render their judgments orally. The entry of such judgments in writing is made by the clerk. Look through the codes of procedure, criminal and civil, and note how rarely the court is specifically required to render its judgments in writing ! Examine the statutes concerning the duties of ministerial officers, such as assessors, treasurers, and the like, and observe how often they are specifically required to perform their official acts in writing, the substance and form of such acts being prescribed with more or less particularity. It would seem that the legislature, in framing certain sections of the annexation statute, considered that they were legislating for the guidance of judicial tribunals rather than ministerial officers. 4. Are plaintiffs in error entitled to prosecute the writ of error as issued ? From the record it appears that some of the plaintiffs in error were trustees of the town of North Denver during the time the annexation proceedings were instituted and carried — 448 — on in the county court, as well as when the writ of error was sued out from this court, and that all of them were resident citizens and taxpayers of such town and duly qualified electors under the provisions of the annexation act. Hence, their rights and interests may he materially affected by the judgment they seek to reverse. They appear now to prosecute this writ of error “in behalf of themselves and all other persons similarly situated and interested.” As said by an eminent author and jurist: “ It is, of course, essential that the person who seeks to prosecute an appeal should show that he is interested in the subject-matter of the controversy, and that his rights will be materially affected by the judgment, for he cannot be allowed to come in if the judgment will not affect his rights.” Elliott’s Appellate Procedure, sec. 133. The prosecution of a writ of error is in many respects governed by the same principles as an appeal. It is an appeal in a large sense. In our opinion, plaintiffs in error have such an interest in the judgment rendered in this proceeding that they are entitled to prosecute this writ of error. Other objections to the record, which have been urged as a ground for dismissing the writ of error, may be more properly considered on final hearing. The motion to dismiss the writ of error is denied. Motion denied.