*1 findings kind, court’s in matters of this if support Green, in the evidence.” See also have Green Traynor, (1959); Traynor P.2d 659 (1961). 70, 360 same is true P.2d attorney’s proper of reasonable fees the award alimony. read

We have entire record and reviewed alleged as- the three errors conduct any merit serted in husband’s We brief. find no lengthen of them and need not to discuss them in detail. is affirmed. and Mr. concur. Day Justice Justice Frantz

Mr.

No. 21207. Colorado State et Carpenters, Council al.

District Court of Larimer et County, al.

(392 601) May 25, Rehearing Decided 1964. denied June 1964. *2 Wayne Mr. Howard Mr. D. Erickson, Williams, E. petitioners. for Wagner respondents. and for

Messrs. Wyers, En Banc. delivered of the Court. the Justice Moore

Mr. This is an the original proceeding petitioners which sought the issuance a the respondents rule directed to that commanding injunction show cause why entered district by the court should not respondent held null and void lack the for to enter jurisdiction same. The rule as was issued and requested respondents their filed answer. appears presented

It this the documents to petitioners request Court that the had a the made Company sign Van bargaining Construction Winkle to a collective agreement Company refused; but that Company performing that said was a con construction City tract with of Fort Collins under which it was obligated capacity a water to build reservoir a with gallons approximately of fifteen million aat cost upon Company that $460,000.00; the failure of the sign petitioners pickets the tendered caused contract, placed project, to be near the entrance work to the pickets displaying placards these which stated Company bargaining agree “does not have collective Carpenters’ ment with Local No. and it 1340”; further appears Company that Van Winkle Construction did application any make to the National Labor Relations petitioners. dispute with Board in connection with Company district court action in the filed an sought injunction against County in which it Larimer damages sought picketing in- and further the aforesaid resulting Company, fol- from the events curred picketing project. lowing work district jurisdiction petitioners questioned the court action the of the injunction. court over- court to enter an objections ruled the made its preliminary premises, following hearing entered and Company. injunction prayed by the Thereafter original proceeding this was filed in Court. been filed read which have We have the briefs district hold cases therein. We contained County Larimer was without court of temporary hereto- that the rule enter *3 hereby We should be and made absolute. fore issued justification say decision of this think it sufficient to practically controversy same the that matters in are Building Construction Trades Coun- as those Inc., 236, Builders, cil American 337 953, in which was held state courts enjoin picketing jurisdiction peaceful in the absence showing Board National Labor of a Relations controversy. accept jurisdiction declined over recent of the United To effect two decisions like Supreme namely, 438, Construc- Court, States Local No. Curry, Laborers’ Union 371 U.S. and General (1963); 531, 2d 514 and Retail 542, 83 Ct. 9 Ed. S. L. 375 Schermerhorn, Association v. Clerks International Decem- 219, 179, U.S. 84 S. Ct. 11 Ed. 2d decided 98, L. ber From the case first above 2, 1963. quote following: mentioned we allegations complaint, as well as the find- “The Georgia ings Supreme Court made least out at arguable (b) § 8 Labor violation of the National 158(b). Consequently, § 29 Act, Relations U.S.C. injunction had no state court to issue

57 controversy, adjudicate lay which within powers Board. Relations Labor exclusive of the National (37 County, 354, Door 359 U.S. Plumbers Union v. Diego Garmon, 359 U.S. [65, 403]; LC Council v. San (37 Employees Union 367]; 244-245 LC Hotel 236, [65, (36 Enterprises, 145]; [65, v. Sax Inc., 358 U.S. 270 LC 478, 481 Anheuser-Busch, Weber v. Inc., U.S. (27 [67, 064]; LC Garner Teamsters 346 U.S. Union, (24 020], 489-491 LC [68, Nor is the Georgia respondents urge, sustainable, courts Georgia right-to-work by 14(b) § reason of the law and 164(b). § of the National Labor Relations Act, U.S.C. precise previously This considered contention has been rejected by Union Farns- this Court. Local 429 v. (32 worth and Chambers Co., [70, 724] U.S. LC reversing Georgia 201 Tenn. 299 S.W.2d 8. The Supreme clearly power authorizing Court exceeded its injunction.” temporary (46 the issuance of a Labor Cases (CCH) 63207). P.

The rule heretofore issued is made absolute and temporary district court of Larimer County in Civil Action No. 14852 is held vacated and naught. Justice

Mr. Hall dissents. Justice Hall

Mr. dissenting:

I dissent. Procedurally, nothing I find in the Constitution, our rules which decisions sanctions or warrants the enter- *4 taining original of proceeding. this matter as an proceeding

Petitioners label the as: “ORIGINAL (4) UNDER PROCEEDING RULE 106 and RULE IN116 NATURE OF PROHIBITION.”

In Lucas District Court,

1084,this court stated:

“Although purports case to arise under Rule original apply not our view that this rule it is does * *

proceedings. *.” original providing Rule for provides: expressly Supreme Court, “ ** * prohibition nature of will Belief in the public importance. except great granted in matters of granted erroneously denied a court has or The fact that change proceeding or is otherwise without venue, regarded jurisdiction, will not as he excess suffi- (Emphasis supplied.) cient” provides: Constitution

Article VI of the — jurisdiction. Appellate supreme “Section 2. provided except constitution, otherwise ** jurisdiction appellate only, V’ shall have — — opinions. jurisdiction Original It shall 3. “Section have, corpus, power mandamus, habeas writs of issue original injunction, certiorari, quo other warranto, authority deter- with to hear and writs, remedial * * same; *.” mine sought any remedial here have not writ. Petitioners petition Though they as “in label their the nature anyone they prohibition,” the court, do not ask that doing anything. prohibited from else, be tem- commenced, was time this At the At porary had been entered. the time application temporary hearing had on the was complaint injunction, before it the court had Company. Construction At Van Winkle contractor, petitioners here, entered their there, defendants time responsive they appearance in that had filed no action, any placing pleading at fact; in issue time * * * judge suggested grave that: doubt concerning grant existed of the Court to requested provisions the relief view National Labor Act *.” Relations They steps questioning took no other presented plaintiff testimony by sev- of the court. The *5 prove allegations complaint; eral witnesses to of its testimony. the defendants offered no original proceeding petitioners pray In this that: “* * * * * * respon- this Honorable Court direct the * ** * * * why injunction cause dents show should be held null and not void for lack showing, enter the in the same, absence of and, such preliminary the said held so null * * void get through Petitioners could no relief a “writ corpus, quo habeas junction,” mandamus, in- warranto, certiorari, original

or “other writs,” and remedial or prohibition. granted the nature of This has such relief. original sought

Petitioners this review proceedings this court of of the trial court. Clear- ly this "court has reviewed the in the trial respondents The have not been ordered court. do doing anything. refrain from This court issued no has no mandate. Without the writ, record before it, it judg- the actions of the trial court, reviewed found the adjudi- ment of trial court void and erroneous, * * * * temporary injunction that: cated is naught.” vacated and held for granted exactly relief that which would granted

been denied on review writ of error. respondents urge Counsel for in their answer that: justify granting “The record does of this extra- ordinary remedy for the reasons set forth in the attached memorandum brief.” respondents point their brief

In out that “where writ prohibition proper error is available, is not rem- edy,” pronouncements and refer to numerous holding. majority opinion court so men- makes no judg- and, of this contention effect, reviews the ment of the court without benefit record and reverses the of the trial court. so disregard proceed numerous majority doing, pronouncements this court. *6 239, 77 People 469, 32 Colo. Pac. Court, District

In v. it stated: is “ * * * juris- court had district But as to whether decide matters and to hear diction in that action complaint different, by supplemental presented is investigation upon important, question, and more and time, at are not inclined of which we pending proceeding, left It should be to enter. in the members court with all its of the for the consideration upon according participating, usual review to the and practice. application, rea- deny other if

“We shall this appeal final of error from or writ because son, deci- judgment action, in case of unfavorable may plaintiffs are be entitled the relief to which sion, invoking original juris- applications These awarded. altogether becoming fre- this court too diction of quent, are right excepting and in extreme cases where appears, clearly extraordinary usual relief and the to the remedy disposed speedy adequate, and we are full, is not parties ordinary which, their remit the remedies prove case, in this cases, which, in most and efficacious, we believe will so.” People it is 306, 1018,

In 79 Stevens, 33 Colo. Pac. v. stated: question Irrespective of the of the questions plain that the which the district is litigate party and in interest desires to the real determined ap- on can be reviewed this peal, district the final of the error, rights procedure adequate. that such is No court, remitting jeopardized by parties interest will be remedies.” them to these People 1, Adams District Colo. Court, ex rel. v. 29 is 888, it stated:

66 Pac. “ * * * right. prohibition It writ of is not one of

61 may extraordinary aof cases in issue the exercise application sound discretion the court to which ordinary addressed, is but never therefor where adequate. applicable 'remedies law permitted Neither ordinary supersede should func it be appeal Bartels, tions of an 4 writ of error. Leonard v. Boy 95; Tom Mines District Court Colo. Gold Co. v. Arapahoe People Co., 441, 537; 23 48 Colo. Pac. District Court of Dist., 251, Second Judicial People Pac. 460; v. District Court Co., of Larimer McInerney City 541; Colo. Denver, Pac. * * * Colo. .” 302, Pac. 516. In Prinster District Court 137 325 P.2d approval quoted following lan- with guage § found in 42 Am. 140-141, Jur. 5: remedy by prohibition primarily preventive

“The *7 restraining, only incidentally or not and re- corrective, giving parties. in the sense medial of relief to “ * * * principal purpose Its to at the is time prevent usurpation, assump- encroachment, excess, part tion of on the of an court or inferior prevent great or, it tribunal, has been to some out- said, rage upon principles procedure, the settled law and of wrong, likely damage, injustice in cases where and (Emphasis sup- to from follow such action. plied.) is

There, it further stated: may “Prohibition never be used trial to restrain a having jurisdiction parties court and of sub- ject proceeding matter a Nor to final conclusion. may committing it used be to restrain a trial court from deciding question may properly error in not a it; before it sup- (Emphasis be used lieu a writ error.” of of plied.) In Leonhart District Court, v. 1, 138 Colo. 329 P.2d it is stated: 781, sweep

“Corrective measures are not within coverage prohibition; of correction is func- of error

62 power to court A trial of a writ of error. wrong right ‘Prohibition well as decision. render a a having juris- may a restrain never be used to trial subject parties matter from diction and of may used Nor it be a conclusion. to final committing error in decid- a to restrain trial court from may ing properly question it used it; a before not et District lieu Prinster of writ error.’ al. May 325 P.2d Colo. Court, 1958, 393, 137 decided 938.” Congregation, 140 Colo.

In Aurora v.

385, it is stated: prohibi simplest writ “In terms office preventive or im tion is in that restrains excessive it possess proper assumption tribunal judicial powers. ing quasi-judicial writ is upon right, the sound, one but cautious discre calls petitioned wrapped up tion of in the exer cise of of other this discretion the existence or absence People adequate 95; relief. Leonard Bartels, Colo. McInerney 534; Court, District v. Denver, v. Colo. 516; Court, Leonhart District Pac. supplied.) (Emphasis 1, 329 P.2d 781.” appearance petitioners here entered in the trial pleadings, testimony, They no offered court. filed judge to that no should tried issue. convince the Failing appear they ask there, here and us They the trial court. do not review the anything prohibit doing court from seek compel they anything. to do What seek nor do *8 say court that on is to have this the record be- do seek (a have), court record which we do fore the beyond order, entered an erroneous an order court jurisdiction, I an order that is null and find no void. its proceedings. precedent for such or sanction Substantively, if the Winkle Construction Com- Van operations pany’s did not affect within the commerce meaning the Relations then under Act, National Labor grant jurisdiction to court had the circumstances such injunction. states: petition Union the here, In its respond- arguably, the that discloses, The evidence “a. engaged Company, in Winkle Construction Van ent, commerce operations engaged com- which affect meaning of National Labor the Rela- merce, within the * * supplied.) (Emphasis Act; tions knowledge if what, record as to court This no anything, We do not discloses.” “the evidence the we not know the trial do us record before testimony nor we have their were, do who the witnesses before us. ques- majority opinion does not mention the even operations com- affect whether Van Winkle’s as to

tion “Affecting prerequisite clothe commerce” ais merce. jurisdiction and Relations Board with National Labor acting. Presumably preclude trial courts petitioners’ sugges- contrary to this issue court resolved spite fact Winkle In that counsel for Van tion. proof vigorously urge that and could here was there building of the com- none that reservoir affected opinion majority no comment with makes merce, thereto. reference majority it is stated: * * * justification say We think it sufficient prac- controversy

this decision that the matters in are tically Building Construc- as those same Builders, Trades v. American Inc., Council 337 P.2d glaring case between that There two differences the the this case. was entered and There, properly had court Union review actions of com- of error. We had before writ us plete record in the trial court where- test we could correctness definitely it There, trial court. was conceded “operation commerce.” Here, affects is contended *9 does not affect operation There, commerce. the judg- Here,

ment of the trial court was reversed. the judgment n — “is vacated and held for naught” my opinion, reversed. The judgments same; cases entirely different.

Petitioners resort this original in lieu of and as a a writ substitute for of error. seek and They here obtain such entered on review (cid:127) —(cid:127) writ of error a judgment is in no way preventive, that has none of the attributes of a judgment in any type of original proceeding.

In my opinion the rule to show cause should issued, it been should now discharged the parties to the original action take such further therein as they may deem advisable.

No. 20471. v. E. E. Fred al., et Feit, Zoller. (392 593) Decided June 1964.