26 Colo. 222 | Colo. | 1899
Lead Opinion
This is an original proceeding, instituted in this court by the plaintiffs, to restrain the defendant, in his capacity as governor of the state, from appointing officers for the recently created county of Teller, upon the ground that the act creating that county, and providing for the
True, neither department can operate in all respects independently of the other, because each, within its own proper sphere, may impose a restraint upon the remainder; but neither can assume, directly, a superior authority over another, as each, in the exercise of their respective powers, stand on a constitutional equality; and if the judicial department of the state should attempt, in a proceeding of this character, to compel the chief executive to refrain from the performance of his duties, under the act creating the new county, it would be an usurpation of authority which alone devolves upon the executive branch of the state government to exercise. Sutherland v. The Governor, supra; State v. Lord, 28 Oregon, 498 ; 43 Pac. 471; Mississippi v. Johnson, 4 Wall. 475.
The relief prayed is denied, and the action dismissed at the cost of plaintiffs.
Action dismissed.
Dissenting Opinion
dissenting.
Granting or refusing an application for a temporary writ of injunction rests in the sound discretion of the court. Were it not that the ground upon which the writ in the present case is refused seems to me to he inconsistent with the doc
It is also to be observed that Mr. Justice Elliott in his opinion in the Greenwood case remarks that some of the statements of Judge Cooley in the Michigan case, relied upon by my brothers, do not meet with his approval. On an interlocutory hearing I do not think we should disregard a previous decision of this court, as it seems to me has been done in the present instance, even though, on final hearing, it should be reversed.
Whether or not this application might -properly be denied on other grounds is not considered by me; and in view of the fact that the merits of the controversy will probably in some other form come before this court for decision, no opinion concerning them is expressed. I desire now merely to express my inability to concur in the reason given for withhold'ing the temporary writ.