*1 16,726. Nо. et of First Judicial v. District Court Enos al. Arapahoe County et al.
District (238 861) [2d] P. Rehearing denied 10, 1951. December Decided November 1951.
Mr. Mr. Ber- Charles Enos, Buckler, R. Charles C. petitioners. M. for nice Buchler, respondent Mr. John E. Fitzpatrick, for Johnson. En Banc.
Mr. Justice Holland opinion delivered court.
Concerning general subject involved, matter here No, July a court in 16717, on denied 23, 1951, petition original proceedings nature for a writ in the judgment of certiorari because no final or decree appeared. lower court Petition a nature of for writ prohibition August July then filed on was On 31, 1951. request, 7, oral and, rule to show was issued cause arguments On October show were heard. rule to discharged opinion. Octo- without written On cause petition rehearing the Upon now before us was filed. ber rehearing,
consideration of the great public is a matter are confident we judgment, importance; no final because there is and, proceed error; writ of petitioners here cannot judg- apparent a not affirm that we would it is further, findings court. made the trial ment entered on the petition and have now determined entertain the We authority order the writ issue. Our is conferred dependent upon, our nor state Constitution and is not wholly governed procedure. by, statute rules
We are called whether to determine authority and in without, of, court acted excess trial proceeding quo abused its discretion in warranto against mayor filed October 11, 1950 board alleging, in sub- Greenwood, trustees the Town of irregularities incor- that due to stance, involved рoration right authority of the town, the town has no incorporated defendants, to exist town, and that the petitioners respective pretended usurped here, have their *3 concluding prayer incorpo- offices and with a that the adjudged usurpation rated town be an unlawful of mu- nicipal government; pretended and that the officers be alleged ousted therefrom. Further it the was of that all doings contrary acts and of are defendants the form of against statutes in provided, such case made and the and peace dignity and of the State of Colorado. proceedings
Quo by warranto was instituted Clarence property purported Johnson, a owner in the town of Village, private Greenwood as a individual name people, having request of the after made a the dis- attorney trict purported of the district which the town requested is located, institute the action and dis- the attorney trict that the event he did find con- not it venient request, permitted accede to the he that bring the people private action on of behalf the aas attorney relator. The district declined the to act on ground pressure gave permis- of of other duties, his proceeding sion to the relator to institute in behalf the people personal the on of relation or relation private other relator. filed a de- .here, promptly defendants, petitioners
The following defenses: on the motion tailed to dismiss maintained by not brought actiоn That is (1) Colorado; said action can state of the the people through and maintained people only brought attorney district the state or the Attorney General of town, that the situated, and of the in which the is district author- designate any could not attorney lawfully district relator attack relator; cannot ity to and that a private incorporation municipality. maintaining That relator from (2) is estopped for incorporation action petition because the before was court on village presented county to the insti- action was not August 14, present and the question until after the election at which the tuted vote of submitted to a of said was incorporation village the inhabitants. main- That relator from
(3) estоpped barred instituted until action taining the because it was after the election of held. mayor trustees was to the On
(4) ground appeared the further was where the petition incorporation to' conformable and the substantially filed that it law was of Colorado in such cases made statutes state provided. court, to the judge prior That in-
institution of this said action, approved order found that said village at which the was sub- election regular said order mitted to inhabitants *4 declared said to be complete. ground motion was overruled on each and every
This here, defendants, petitioners and thereafter presented grounds answer contained their setting filed an out with other additional dismiss, together to de- motion that rеlator right has no fenses, namely, or attack town the reason that organization or additional subject he no different interest has any taxpayer and matter in the action than other that village special, or resident has no different subject matter; additional interests in the that rule (a) applied (3), C. P., Colo., R. is when unconstitutional applied action; action, that if to this the rule is to this contrary chapter page 1939, Session Laws of 80, 264, provides procedure which that the rules of civil abridge, enlarge, modify rights; neither nor substantive maintaining that the relator from action is barred attempt validity it is munici- because an of á to test the pality right persons certain hold office municipal corporation; within such an and that action cоnstitutes collateral attack orders judgment entered court. among reply
To this answer relator filed a in which, things, alleged immediately other he after the elec- pretended tion of the town, officers action was filed; that to file action the election before of the offi- recognition validity corpo- cers would be a of the ration; and that this action is an action to contest right mayor of the elected officers to hold office village plaintiff of a trustees which claims does not exist. appear, For reasons will hereinafter motion to dismiss should have been sustained. writ could This any grounds be issued on one of several without further discussion. apparent compliance chapter
In with section ’35 163, p. C. S. as amended A., S. L. 1941, p. 755, and S. L. any 708, which is follows: “When the inhabitants of part any county not embraced within the limits of city incorporated organized or town shall desire to be city incorporated they may apply by peti- into a town writing, signed by seventy-five tion in not less than qualified electors, who are landowners of the terri- tory proposed city incorporated be embraced in the proper county; town, to the territory proposed shall describe the to be em- incorporated braced in such town, and have *5 thereof, or map plat an accurate annexed thereto incorporated or city for such proposed the name state satisfactory proofs accompanied and shall be town, em- territory within number of inhabitants in no however, provided, limits; in said braced incorporated or city incorporated there be shall consisting or of land undivided tract tracts town any limits or more within forty lying proposed acres or owner such city town, or without the consent at on owners unless such land be surrounded 'thereof, land; further, least three sides by platted provided, city if the be in the proposed to embraced territory twenty-five a incorporated town is situate in forty (40) quali- thousand (25,000) less, inhabitants organize fied electors and to may petition landowners herein- manner into a incorporated town filed above 14, there provided.” August be owners claiming to petition signed by eighty persons, of real described territory located therein property elec- to sought being be incorporated, qualified tors who have the sought petition territory municipal of the described Greenwood under name the Town of said submitted the vote of the electors of the Village, section 3, chapter provisions district pursuant ’35 as follows: “When such C. S. which is A., shall forthwith five appoint shall be the court presented, an election all who at once call commissioners, shall em- within the residing territory electors qualified said braced within limits as described and platted, within said limits, held at some convenient place in some be given publication notice for which shall be, if there limits, said within newspaper published notices five weeks, by posting for three successive news- there no said limits. If places public given then such notice shall be limits, within said paper same; within the eight places notices in public by posting than to be not less publication and the first posting said notice preceding Such such election. three weeks con- election; specify place time of such *6 proposed or town description limits of said of the tain a description plat are on city, and thereof state and county Said court. the office of the clerk of file in the judges the elec- and clerks of act as commissioners shall judges qualify required and for law and shall tion, report of shall the result clerks of elections, said the used at ballot ballots to the court aforesaid. The incorpo- ‘Against incorporation’ election shall or be ‘For ” ration.’ chapter Section 4 follows: of appear ’35 163, said C. S. A. is as petition in- “If it corporation shall court that the the substantially law and conformable to substantially regular that said a fair and election was majority in of the at such election was ballots cast incorporation, adjudge favor of the order court incorporation complete, said to be clerk the and the of immediately shall, court on commis- of the return being give sioners filed in result notice office, of by publication newspaper, newspaper in a or if no published county, by posting public places in five proposed city within of town; the limits in or designate such notice he shall to which of the classes of incorporation prescribed city hereinafter such town or belong. copy A proper proof notice, publication, papers shall be filed with the and a certi- copy papers fied relating of all and record entries matter on file in the clerk’s office shall be filed in the county, recorder’s office of the and in the office secretary of state.”
According petition challenged herein, and not county judge or approving denied, entered order calling said for an election to submit incorporation appointed of such com- five missioners to day conduct the election as of 8th September, 1950; that at said election one hundred thirty-eight seventy-four votes were cast, votеs favor against; votes sixty-four
of incorporation accordance with 11th day of September, order entered its statute, judge complete. said adjudging incorporation A., ’35 S.C. In of section 6, chapter pursuance or city such follows: “When in sec- mentioned town commissioners completed, consecu- two tion 3 of this give notice, chapter shall elec- the first holding tive of the time and weeks, place or newspaper, tion of officers therefor by publication city such if none be the limits of within published the limits town, by five posting public places such election electors of the same. At the qualified such city town within the limits residing until the first therefor, town shall choose officers to hold here- annual election of to its aсcording grade, officers *7 inafter in this Said commissioners shall law prescribed. it and clerks of the and otherwise judges election, act conducted, and the officers elected thereat for the manner law qualified, prescribed by election and com- of officers.” the qualification precinct theretofore of first appointed gave missioners notice the election of officers of said be held on municipality October at which election were 6, 1950, these petitioners mu- mayor elected trustees of said duly respectively nicipality. the election, of the results the
Immediately following held and the first of the board of trustees was meeting certain organization designation completed treasurer; dеsig- recorder, individuals as clerk and the adoption nation of for newspaper; provision official business; and order of of a adoption corpo- rules seal; treasurer; for for an rate bond oath provided year and the of a fiscal of the designation corpora- office trustees alleged tion. It is that board of thereafter meetings continued to hold regular of said municipality in- Monday on the first and third of each month and at such enacted time, meetings cluding present general required of a nature other ordinances levy budget fixing and collection traffic fines, levy zoning and mill also a ordinance and vari- necessary ous other ordinances considered func- for the tioning municipal corporation, of a and are still continu- ing municipal corporate to function as authorities.
Thereafter and on relator October 11, 1950, quo complaint hereinabove filed mentioned war alleging seventy-five signers ranto that fewer than of the incorporation of said for the were bona fide land territory owners or residents or bona fide described, territory, specifically inhabitants of , named being qualified nine individuals as not electors within By admittedly the district. this action the relator at validity incorporation tacked the ing as well as seek petitioners the ouster of the defendants, offi here, as cials of the town that he did contended not exist.
Neither the record of the nor court the district court is us, before but it is not denied, either in оral ar- guments judge brief, en- adjudging incorporation tered an order said com- to be plete day September, on the 11th 1950. Neither gave proper denied statutory the commissioners place holding notice of time and the first election petition- officers; nor is it denied that the defendants, duly herein, ers were elected officers at the election pursuant held to notice. apparent misconception
Due to an of some of our de- prior cisions to the in 1921 amendment of our laws re- lating to the of cities and towns, *8 necessity construing present determining of our law and questions presented, other guidance, here for further we attempt following questions: (1) to determine the In the providing, a quo absence of so statute can warranto proceeding attacking validity municipal of a de facto corporation be instituted and maintained other than through duly delegated authority? state (2) its Can sufficiency original petition incorporation after election been thereon
be attacked an has held have Is qualified spoken? petition electors such officio? Under our decision functus rel., case of Friesen v. ex 192 P. People, Colo. (2d) maintaining is the relator from estopped action? trial to the these were
Generally, questions presented adverse court, which, hearing, findings after made however, judg- no on questions; these petitioners general time findings ment been entered on the at has us. now before filing petition rehearing The involved have been hereinbefore statutes pertinent of our misconception set and to of some clarify out mentioned, out that pointed decisions above must concerning quo all of the virtually decisions of offi- warranto ouster proceedings involving municipal were corporations cials and validity municipal based following statutes the 1908 appearing Revised Colorado relating Statutes of cities: towns and * * * any part Sec. 2. When inhabitants of “6514. city not the limits of any embraced within any county desire to be into a organized shall town, or incorporated they may apply by town city incorporated petition or less thirty qualified than signed writing, em- territory are land owners of the to be electors who оr city proposed incorporated town, braced in the county; court of the proper to be embraced in such territory proposed describe the have annexed town, or there- city incorporated thereof, or state the name map plat accurate for such and shall be city incorporated town, proposed satisfactory of the number of accompanied proofs limits; embraced inhabitants within the in said territory however, That in no case shall Provided, there be incor- incorporated in such town undivided city porated forty tract or tracts land or more acres consisting limits of proposed lying town, *9 un- thereof, owners the owner or the consent of without by least three sides such lаnd be surrounded on at less amending §3299; p. platted S., G. [L. 387, §1; ’91, land. §2642.” L.,G. * * * pre- be such shall “6515. Sec. When 3. appoint five commis- forthwith sented, the court shall quali- call election all the sioners, who shall at once territory residing fied with- within the embraced electors platted, some in held at said limits as described and to be place which within said the notice for limits, convenient by newspaper pub- given publication be some shall in within for three suc- limits, lished said if there be, public by posting cessive notices in five weeks, newspaper places within said If no with- limits. there be given posting limits, in said then such notice shall be post- eight public places same; said in within notices publication ing three than and the first to be less specify preceding such Such notice shall weеks election. place election; time shall contain a of such the description city, proposed the limits of said town description plat that a are on and state thereof file county clerk commis- the office of of the court. Said judges act as election, shall and clerks of sioners judges qualify required law for clerks shall report the ballot elections, and shall result of used at said election to the court aforesaid. The ballots ‘Against Incorporation.’ Incorporation’ shall ‘For §2643.” [G. S., §3300; L.,G. * * * majority “6516. ballots cast at Sec. 4. If incorporation, the clerk such election be favor of such immediately shall, on the return of being give filed in notice office, the commissioners by publication newspaper, in a or if no news- the result paper published county, posting pub- in five places proposed city town; lic the limits of the designate such notice he prescribed hereinafter classes of belong. copy proper A or town shall notice, of its be filed with the proof papers, publication, and a re- copy papers certified of all and record entries to the matter lating on file the clerk’s office shall be *10 in office county, filed the recorder’s and in the §3301; of L., office of secretary S., state. G. [G. §2644.” * ** “6517. Sec. 5. When certified of copies papers and record entries filed, are made and by the required preceding section, and officers elected qualified are for such or town city as hеreinafter the incor- provided, poration shall thereof be whereof notice shall complete; be taken in judicial all §3302; proceedings. L., S., G. [G. §2645.” * * * “6518. When such Sec. 6. of city or town is in completed, the commissioners mentioned section give two of act shall consecu- notice,'-for two tive weeks, of the time and of place holding first election officers therefor by in news- publication ifor none be paper, published- the limits such -of or in city town, by five posting public places within limits same. At such election the qualified electors of such town residing or within the limits such n city or town shall choose officers hold therefor, to- until the first annual election officers according .grade, as hereinafter in this act prescribed. Said commissioners shall act as judges clerks of the and other- election, it shall wise be conducted, the officers elected there- at be in qualified, the manner prescribed law for election and qualification of precinct S., officers. [G. §3303; G. L., §2646.” (cid:127)
The parenthetical notation at the conclusion of each section indicates these in statutes were effect over a long period until the 1921 years statutes amendment appear hereinbefore out. set
Prior to the of our adoption rules civil procedure, (a) rule 106 relied especially by counsel for upon relator, following section 321 of our then of Civil Procedure was in Code but effect, repealed: now * ** brought at- may the district §321. An action upon people torney state, in the name of complaint of upon relation information, or own usurps, against any person intrudes private party, who any public unlawfully office, or holds exercises into, or military, any his district civil franchise within attorney duty the district state, it shall be the bring believe reason to the action whenever he has usurped, in- been such office or franchise has by any per- unlawfully held, truded into or or exercised governor; son, he do or when is directed to so attorney neglect case such district refuse bring private party, complaint action of a such may brought by private party, upon such action people relation, his own name of the of the state. p. [L. 192, §289; §320.]” ’87, ’08, Code *11 provision former code had the force and
This procedure, present civil еffect of a statute. Our rules of only particularly (a) operate and 106 can on or rule respect procedure, par with to matters of therefore, the upon ticular relied section here is not a statute and does not, cannot, statute, and have the force effect of a and enlarge abridge rights. Crow and cannot substantive ley (2d) Hardman 122 Colo. 223 Bros., v. P. 1045. reading comparative
A casual, of the old statutes herein and 1921 amendment all of which are thereof, fully at the function of out, set once discloses that judge county under the old was statutes purely amendment, 1921 while under administrative, judicial. In old words, the functions are other under the coupled, judge, action other statute completed incorporatiоn, requirements, the acts of while appeared amendment, when it under the sub-, county judge was stantially to law conformable and that said election was regular substantially majority fair, and a of the bal incorporation, such election was in lots cast at favor of mandatory upon judge adjudge it to order In incorporation before complete.
us, judge made such finding and judicially decreed complete. the incorporation to be It is significant in section note 6 of the new amended laws, pro- when the incorporation or town vides is com- pleted, the commissioners then give two consecutive week’s notice of time and place holding the elec- first tion of officers by publication or by posting within limits of the inсorporated town.
There is no denial or contention that these sections of the hew law were substantially not with. That complied being true, de if facto, not a de jure, municipal corpora- tion was established, which brings us the first to be answered: Can an maintain action, individual and further, can such authority delegated by the dis- trict attorney? The answer must be no. before The case us is admittedly one designed to attack the validity the corporation.
Municipal corporations character here involved are created only authority the state by legislative if enactment, are, created thereunder, solely for public private purposes, become an arm of the The right state. to exist as such a corporation solely is derived from the state and any action aimed attack legal its existence after it becomes at a de least facto must be confined to the state through official representative, such official representa tive in the absence of a statute, cannot delegate such au thority. Here the assumed relator has no interest matter subject distinct from the general public in the territory involved, and there is no denial that, in the last *12 analysis, he was acting his individual On capacity. particular the case of State ex Wah-we question rel. yea-cumin Olson, v. 107 Minn. 119 136, N. W. 799, pub in 21 lished at length L.R.A., New Series, page 685, the are notes thereto directly point and show that the majority of cases hold as hereinabove outlinеd. If rule we have adopted herein applied in a quasi
349 Irrigation municipal corporation of Tulare in the case Sup. 773, Shepard, 46 L. Ed. 531, 32 Ct. 1, v. 185U.S. Dist. greater a equal in the case of applies force if not it applied Tulare municipality. The rule was de facto following supra, lan- Shepard, Irrigation Dist. v. guage: cited, above are
“From the some of authorities, corporation appears requisites a constitute that to general law under (1) de a are charter or three: facto might law- purports be to which such a itas organize (2) thereun- fully organized; attempt to corporate The franchise. der; actual user of the and at general requisites. awas There bar contains these corporatiоn, de- which a valid law under un- formed;- could there was be, is claimed to fendant organize doubtedly attempt thereunder, a bona fide corporate has been franchise. and there actual user of the organize attempt progress district In supervisors made, was the board of determination of declaring body provisions of the statute, under Subsequently organized irrigation duly district. abe and have ever since were elected took office officers discharged statute, under the the duties thereof special to determine the election held pursuant issuing bonds, and bonds were issued have been commenced election, result of such suits corporation. anything In name of the can brief, if corporation, de herein the dеfendant constitute facto constitutes one.
[*] # [*] general “Being corporation, a de rule is facto question. The but can call its existence in none the State People agree such is rule. courts of California Irrigation Company, 276; [32 97 California, v. Montecito [37 Quint Pac. 236]; Hoffman, California, 506, v. Pac. Cooley supra; Lim- also, see Constitutional 777], 514, itations, Michigan page Air ed.; Swartwout v. 4th Michigan, 393.” Co., Railroad Line *13 350
In a questions, approve similar we involving v. 17 logic reasoning Vickers, State N.J.L. Atl. contained in the following quotation: “It is manifest an do attempt indirectly that this is to what this court done di- has declared cannot be already is, for rectly—that call private relator to cor- existence one of that are public these bodiеs porations at least Such an en- facto, jure. de if not de deavor is that obviously of all possessed impolicy that to; forms basis of the that prohibition alluded is, basis that it was highly these munic- inexpedient that ipalities, being the depositaries part of a govern- mental power the state, should have their very being put at hazard whenever member of the community saw fit to make the it Being institutions, assault. public was determined that their existence was not to be chal- lenged except by the state, through its attorney general, he ex acting representative as the officio, of the public, and that in used, name procedure his could not be pro forma, aby relator. private reason,
“This the rule and its it is manifest that being would be absolutely preposterous permit corpo- rate existence to be called in question private aby per- son, for the purpose dismemberment, for in depriving municipality organs, you its dissolve it. practically If this defendant is ousted from his com- office of mon councilman, on the ground has life, for the so, reason, same can no re- associates be from moved their posts; and the same fate would await all the other functionaries of the borough, and this thus government local would, for all useful an purposes, be at In substance, end. therefore, result of this indirect attack, by a hand, would private same, be the as would attack, the direct on the same ground, upon corpo- ration; and the latter has been alreаdy declared by be not permissible.
“It proper further remark circuitous assault the corporate has existence objection assault, an immediate inherent in additional to those brought, processes into municipality is not in its defending opportunity court, and, therefore, has no *14 life. ground legal laid
“Our conclusion there is no is, that by ousting him, the office held the defendant from judgment consequently, on this to and, is entitled he demurrer.” question case, cited
On the mentioned in the last being corporate that of a the this assault on circuitous being municipality party the existence the a without to by and in motion filed action, also contained to strike relator wherein said, he “that file an action before the to recognition election of the officers the would be a validity corporation, and action is an that this right to the hold action contest of the elected officers to mayor village plaintiff office as and of a trustees does not within action was exist, claims the immediately pretended filed after the election of said position by undoubtedly officers.” This the relator was prompted by opinion Peo of this court in the ple ex 33 Stratton, rel. v. Colo. Pac. decided applicable under our former statutes and not here. We delayed are inclined to the view that when relator action until after the election of the in conform officials, ity attempts by with the statute, this action to oust recognized legaliy existing officials, he has of an thereby recоgnizes office the existence of a munici pality to be filled, offices then he cannot, proceedings by action, seek to have which the office right created declared void. The attack to the exist private as a ence individual is a sub right pro stantive rule under which relator enlarge abridge ceeded which would such substantive recognized right having cannot be force effect having appear statute. All been of a of this made to to the in the motion trial court dismiss, should have deter statutory authority permitting that there was no mined delegate right attorney institute the district jurisdic- have no action, and, the court would therefore, tion to entertain the action. sufficiency question:
The Can the next original petition аttacked after qualified electors election has been held thereon and the spoken? officio? have case functus Is the original petition life The filed had court as county judge be suf effect, and was found by which ficient on the the means its face to set in motion qualified speak. could At voters the district point, Peo said in Friesen v. before as was election, ple supra, remedy ex rules rel., afforded there county judge in an action had to determine whether the prevent exceeded or abused his discretion and to placing question people. action No such before the having been at taken, after was determined *15 qualified an election at which all ter electors ritory privileged petition were all then lost vote, of its virtues injected further could deficiencies and life not by sufficiency. any into it virtue of attack its on purpose, It was sufficient and served its full and it was judicially quote so determined. We continued, with emphasized, approval, Mr. now Justice the statement of the late
Hays People supra, in Friesen ex fol v. rel., “Simple justice requires lows: the relators should that promptly have had the board re determination of the they idly viewed and that until could not sit all arrangements for the election been made, had the ex penses prepared published, thereof incurred, notices printed, polling places provided ballots election for, actually held, an returns results canvassed, certified, adjourned еlection held, and the of the district officers manage elected kind. without action of affairs, waiting After almost four months and when of the all things posi above have been relators a done, are not in question sufficiency tion to of the validity findings of the of the board.” formation case involved in that While the decision believe, applies, as we district, a conservation soil greater de facto a in the case of and effect force many municipal mat- corporation, as to therefore, and, is controlling before case in the decisive and involved, ters say authority, upon relator we now us, and it as maintaining estopped action. herein from was, is, we pleadings herein, From an examination of relatоr’s Peo- Norton v. are that the case of confident ex he followed ple (2d) decided 81 P. rel., Colo. counsel
court on June in fairness to 20, 1938, and distinguish from case.at bar relator, we now that case following controlling question in the here respects. question in this individual, whether
The direct corporation validity was can attack the a de facto case, upon a re-exami- in the Norton case. We find not raised was contended nation of the briefs that that it proper party respondents not a because that relator was not resident, or an he was elector, he was not territory Without consider- a freeholder involved. point, of the now before on that we ation us party proper because of dеtermined that he was there territory, payment property of taxes within the proposition and there the relator stood on the squarely authority attorney. from The he had the district right attorney delegate question of the district authority finally, never raised in and, the the decision was the case, the Norton case determina- that the court had entered a tion decree find- Regardless ing complete. to be *16 apparent reason conflict, we see no to overrule the Nor- supra, questions controlling ton case, because here presented or considered were therein. regarding quo have said is,
What we warranto limited to the in course, facts this case. alternative writ herein be is ordered made
It permanent. Clark Jus- Justice Justice Mr. Stone, Mr. Mr. specially concur.
tice Knauss Justice Alter Mr. dissents.
Mr. Justice Clark concurring. specially respect foregoing opinion
With to the I concur my pres- under result because firm conviction that chapter C.S.A., ’35 statute, 4, 163, ent amended section county judgment declaring incorpo- court Village complete, ration the Town of Greenwood be definitely distinguished judicial min- is from a act, county proper function; isterial court is the feeling aggrieved forum, should file one protest, proceedings otherwise attack the had in county might in such him court, manner as deemed county advisable; that in the decision event of adversely protest, might review thereof upon jur- had court; writ of error from this and that the county being prescribed by isdiction of the court; being judgment its statute, may viewable, re final and collaterally brought not be attacked action other tribunal, or manner otherwise than as herein- above outlined. principal my
The distinction, mind, between People, case and that of Norton 81 ex rel., v. Colo. (2d) county P. that, the instant ca'se the Arapahoe actually court of entered its formal judgment contemplated in manner statute, judgment in the while Norton case no final was entered court. opinion special The author of to which con- is attached, currence to the issue, adds as I-have herein questions”—(1) it, “other first, discussed three as to concerning quo proceedings, warranto confined lim- agreement. is in I ited as it am in statement, On question holding original petition the second incorporation that the holding
became functus officio *17 may attacked, election, not thereafter and that agreement expressed in I am not with the views presented, opinion. I am theOn third agreement general, though specifically, in full not opinion. My personal is situation, however, view of the whole are called in the case now before us we my questions, three and it is belief determine time unless and until such that we should not do so may required it is come before us wherein that said proper be settled in order to reach conclusion. matters opinion accord with the To extent expressed, I I herein concur. To the. have views respectfully I thereof dissent. remainder Justice Knauss Justice concur Stone Mr. Mr. opinion. 16,541 16,542. Nos.
Westing v. Marlatt.
(238 193) [2d] P. 8, 1951. Rehearing denied November
Decided October 1951.