299 P. 1 | Colo. | 1931
THE exercise of the original constitutional jurisdiction of this court is sought by the people of the state of Colorado, upon the relation of the three members of the Colorado state board of corrections, the warden of the state penitentiary, the special deputy warden, and the chief *80 of the state law enforcement department of the state of Colorado in their petition for a writ of prohibition against the district court of the second judicial district of the state of Colorado in and for the City and County of Denver, and Honorable Henley A. Calvert, one of the judges thereof. Petitioners thereby seek to restrain the district court and the judge from exercising any further jurisdiction in a certain contempt proceeding now pending in such court, filed by the district attorney, whose object was and is to have these petitioners punished for their alleged violation of an order and judgment of said court theretofore made and entered in a criminal action, "now depending therein," whereby the defendant therein, George West, was by the court sentenced to the state penitentiary and to be there kept and confined for a period of not exceeding ten years and not less than eight years from the date of his incarceration. The contempt is said to consist in the fact that the petitioners here, in contravention of the commitment order, and in utter disregard of the same, and contrary to the laws of the state of Colorado, released and permitted the defendant to leave the state penitentiary at Canon City, Fremont county, Colorado, and to be and remain at large in the City and County of Denver, and so to remain without the walls of the state penitentiary and to live at home from May 14, 1930, to May 20 of the same year, all in utter disregard, and in defiance, of the order of the district court made and entered of record in said criminal case.
This petition to show cause was signed, but not verified, by the district attorney or by any other person. An employee of the district attorney's office filed an affidavit in the proceeding in which he says that he had investigated the report that defendant was at large in the city of Denver and permitted to live at home and not confined within the walls of the penitentiary, and found that such reports were true and that he had been released from the penitentiary upon the orders of the *81 petitioners herein. This affidavit, however, does not refer to, or purport to be a verification of, the petition of the district attorney.
[1] If the alleged contempt is a civil constructive contempt, the code section applicable thereto requires a verification of the charging petition. If it is a criminal constructive contempt, and is instituted by the attorney general or the district attorney, verification is unnecessary.People v. News-Times Pub. Co.,
[2] In Wheeler v. Northern Colo. Irr. Co.,
[3-5] With this and other decisions to the same effect in mind, let us see if this application comes within the requirements. It is made in the name of the people, on the relation of the members of the Colorado board of *82 corrections and the warden and other officers of the state penitentiary. This board, under our statutes, as they read at the times above mentioned, was invested with plenary power and control and management of the penitentiary and other state institutions, and its members were certified for appointment by the State Civil Service Commission, and the governor had no voice in their selection, but was compelled to appoint only those thus certified. He had not power to remove them and they remained in office until they died, resigned or were properly removed by the Civil Service Commission. As state officers they were amenable only to the Constitution and the statutes of the state for violation or neglect of official duty. Our statute has recently been modified in these particulars. That the matter in dispute, as above stated, is publici juris is not questioned. Indeed, concerning, as it does, the conduct and method of managing an important state institution by state officers, the state as a whole in its capacity of sovereign is directly affected. All of the essential elements necessary to invoke our jurisdiction in this application are unquestionably present, as above stated, provided the trial court is without jurisdiction to hear and determine the alleged contempt, and if the situation disclosed in the pending petition is of such grave importance as to invoke our discretionary power to afford the extraordinary relief prayed for. We have not overlooked some of our former decisions where we said that such applications should be made or instituted upon the relation of the governor of the state acting by the attorney general. But we think that requirement is not applicable here. It is matter of common knowledge, of which we take judicial notice, that the governor of the state and the attorney general in office at the time this application was made, were not in harmony with the Colorado board of corrections in its management of the affairs of the institutions under its control. It is not at all likely, in these circumstances, that the governor would have joined with the board in this *83 application if requested to do so, and the board, considering the situation as above stated, was justified in acting as relator without securing the consent or approval of the governor thereto.
Appropriate punishment of the petitioners here was sought in the district court for their alleged contempt of that tribunal, which consisted of the permission which they gave to a prisoner committed to the penitentiary by the Denver district court, to be at large and not confined within the walls of the penitentiary as the order of commitment of the court provided. The contempt petition charges among other things that the sentence or commitment order of the Denver district court was made in a criminal action in that court in which the prisoner committed was the defendant and that this action was still "depending" in that court.
[6, 7] The district attorney apparently considered that the district court had jurisdiction to hear and determine the alleged contempt because, as he thought, the action, in which the commitment order was made, was still pending. The contempt order or sentence was entered in a criminal action in 1927 of which the district court had lost jurisdiction. It is not claimed that any writ of error has been sued out to review this final judgment of the district court. It is a matter of which we take judicial notice that the term of the court when this sentence was pronounced expired many months ago and several succeeding terms of court have been held in that judicial district. A cause is pending until it reaches a final determination either in the court of original jurisdiction or in the appellate court. In Re Egan,
[8] But if the criminal action was pending in the district court at that time, there is another and more convincing reason why the district court should be prohibited from proceeding further in the contempt proceeding, and that is because it has not jurisdiction of the subject matter. The theory of the district attorney, which was adopted by the district court, and only upon such theory may the penitentiary officers be held guilty of contempt, is that where one convicted of a crime is sentenced to the penitentiary and is delivered to the state officers in control by the sheriff of the court which pronounced sentence, these penitentiary officials hold the prisoners as officers or executives of the sentencing court. Two cases so holding are cited by the district attorney from the state of Arizona. The first is Howard v. State,
[9] If a water commissioner, whose duty is to distribute water for irrigation in accordance with a court decree in a civil case, is not an officer of the court rendering the decree, we do not see how the members of the board of corrections, who have control of the Colorado state penitentiary, and the warden and other officers of that institution can be said to be officers, or that they hold prisoners committed to their charge as custodian, of the court which sentences prisoners to confinement therein. As we have already said, these prison officers *86
are state officers. They are not custodians or officers of the court which sentences prisoners to that institution, and are not guilty of a contempt of court in violating the order of commitment. In Hundley v. Foisy,
In the opinion of Chief Justice Fuller, in United Statesv. Shipp,
[10] This decision is in line with our conclusion here that the penitentiary officials of Colorado are not guilty of the contempt charged against them in the Denver district court because they are not officers or custodians of that tribunal, but are state officers and liable for their wrongful acts, if any they committed, to prosecution under the Constitution and statutes of the state for a violation of official duty.
It follows that, as the district court does not have jurisdiction of the subject matter of the alleged contempt, the writ of prohibition should issue as prayed for.
Writ of prohibition granted.