11 Colo. 489 | Colo. | 1888
Lead Opinion
Felton was plaintiff in the court below, and obtained a judgment by default against Hughes, the defendant. Hughes afterwards moved for a vacation of said judgment, but his motion was denied. The denial of said motion is assigned for error. It is not permissible, in a case brought here by writ of error, to assign error on an order of court made after final judgment. Polk v. Butterfield, 9 Colo. 325.
The only other point relied upon for a reversal is that the superior court is no court, and had no jurisdiction as such to pass judgment in the case. To support this proposition it is claimed that the act of the legislature approved February 10, 1883, under and by virtue of which the superior court was organized, is nugatory. The objection made to such act is not to the mode of its passage, nor to subject-matter apparent on the face thereof; but because, as it is claimed, the legislature which enacted it was not a legal or constitutional body. In che case of People v. Supervisors, 8 N. Y. 317, it is said that, in order to take advantage of an objection of this kind, it should be set forth in the pleadings, so as to afford the adverse party an opportunity of controverting the same. But, however this may be, there is another matter which is fatal to the claim here made. Article 5, section 10, of the state constitution, referring to the legislature, provides that each house “shall judge of the election and qualification of its members.” The power thus vested and conferred is exclusive. The courts cannot interfere with its exercise, or review the decision of either house, acting under and in pursuance of said power. Such decision is conclusive. People v. Mahaney. 13 Mich. 481;
Affirmed.
Rising and Stallcup, CO., concur.
For the reasons-assigned in the foregoing opinion the judgment is affirmed.
Rehearing
ON REHEARING.
If, notwithstanding the contrary declaration of the opinion, we assume that the constitutionality of the apportionment act mentioned is fairly before us, the conclusion arrived at by the commission is not avoided. This assumption simply transforms the inquiry, as to the title by which certain members of the fourth general assembly held their seats, into an attempt to question the legal status of that body as a whole. The views upon this subject urged by counsel for plaintiff in error cannot be adopted for the following among other reasons: The fourth general assembly, including the
Rehearing denied.