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In the case of Wheeler vs. Northern Colorado Irrigation Company, 9 Colo., 248, the plaintiff sought an original writ of mandamus from the Supreme Court to compel an irrigation company to deliver him water. The court took the position that it would not exercise its original jurisdiction in mandamus except in case publici juris. In that case the court, per Judge Helm, considers section 2 of article VI of the state Constitution, using this language:
Section 2 treats of two subjects, first, the appellate jurisdiction of the court, and, second, its general superintending control over inferior courts. This section undoubtedly defines the principal power and authority which the framers of the Constitution intended this tribunal to exercise. As the head of judicial system of the state, it was eminently appropriate to confine its jurisdiction to the review of cases and proceedings determined by inferior courts, and to a superintending control over such courts.”
The learned judge then answers the contention that the writs mentioned in section 3 should be restricted to the efficient exercise of the authority given in section 2. He held that position to be untenable for three reasons, using this language:
"First. Section 2 itself, by the declaration that the jurisdiction shall be appellate only, 'except as otherwise provided in this Constitution,' implies the conferring of some independent original jurisdiction. Second. At least two of the writs designated in section 3 can not be used in aid of appellate jurisdiction, nor are they appropriate to the exercise of a superintending control over inferior courts. Third. The appellate jurisdiction and the superintending control, each, without any express provision on the subject, carries with it authority to issue all writs appropriately connected with the proper performance of the duties imposed. It is an established doctrine that one of the essential attributes of appellate jurisdiction, and one of the inherent powers of an appellate court, is the right to make use of all writs known to the common law, and, if necessary, to invent new writs or proceedings in order to suitably exercise the jurisdiction conferred."
Citing Attorney General vs. Railroad Companies already alluded to here.
The subject of superintending control was again incidentally considered by our Supreme Court, in the very able opinion by Chief Justice Helm, in the case of People vs. Richmond, 16 Colo., 274, an original proceeding, in the nature of a quo warranto, wherein the constitutionality of the act creating the Court of Appeals was considered. Among other contentions made at the bar in behalf of the relator in that case, it was urged that the creation of the Court of Appeals would interfere with the appel. late jurisdiction of the Supreme Court, and with its superintending control. It was suggested that if the legislature had power to create an appellate tribunal other than the Supreme Court with final jurisdiction in cases involving $2,500 or less, it could, if it saw fit, vest that court with final appellate jurisdiction practically in all cases; and, moreover, that two appellate courts, both having final jurisdiction within certain limitations, might reach contrary opinions upon the same legal principle, and thereby the uniformity of judicial decisions and symmetry of the law in the state would be interfered with, if not destroyed. On this subject the learned chief justice says:
“But the present statute does not undertake to create a tribunal superior to or coördinate with the Supreme Court. The Court of Appeals is given no original jurisdiction whatever, and no independent superintending control over other courts; neither is it authorized to answer executive and legislative questions."
From this sentence it will be noted that while our Supreme Court recognizes that the Court of Appeals had final appellate jurisdiction in certain cases, it had no superintending control over other courts. This clearly shows that in the opinion of our Supreme Court the superintending control is something independent of and not ancillary to appellate jurisdiction as such. Again at page 284, the learned chief justice uses this language:
“True, the intent is clear to make this court essentially a court of review; the word 'only' coupled with the other words employed, plainly indicates the purpose to render its primary and principal powers appellate; its superintending control over other courts and its limited original jurisdiction, together with its anomalous duty of answering executive and legislative questions, while functions of great importance and value, must be regarded as secondary."
It will be noted here that the word “secondary" in that connection does not mean ancillary or subordinate, but merely means less prominent, as the context shows, and as the decisions previously alluded to render certain.
Again on page 286, this language is used:
“It may be, as counsel suppose, the views entertained by the Court of Appeals in cases within its final jurisdiction will sometimes differ from those promulgated, under like circumstances, by the Supreme Court. But it is believed in such instances the Court of Appeals will voluntarily yield its judgment to that of the higher tribunal. Something must always be trusted to the disposition of judges to act for the general harmony and good, as well as to their honesty and legal discrimination.”
Again, on page 288, the following language is used by Chief Justice Helm:
“When the legislature attempts, if it ever should, to interfere with the existence or supremacy of this court, or to change the nature of its jurisdiction and duties, or to render it an “idle and empty pageant,' the court will undoubtedly decline to recog. nize such usurpation of authority and illegal action."
The foregoing discussion demonstrates the following propositions:
First-That the power of superintending control over all inferior courts vested in the Supreme Court of the state is distinct from, independent of, and not merely ancillary to its appellate power. Second—That when occasion arises, the court may use not only all the writs known to the common law, but, if necessary in an extreme emergency, may devise new writs adequate to exert this supervision and control.
As already stated, we have been unable to discover any cases in which this comprehensive power has been exercised, except as it incidentally has resulted from the exercise of ordinary appellate jurisdiction and by jurisdiction over the writ of certiorari. But that the power exists and can be exercised without reference to appellate jurisdiction and by means of other writs than certiorari and mandamus, if necessary, is clear. It seeins to be a great reservoir of reserved judicial authority, heretofore little drawn upon; a mine perhaps yet to be exploited.
It may be observed that the power of superintending control in this state is more limited, by the words of the Constitution, than in the states of Missouri, Michigan and Wisconsin. In Colorado, as we have already noted, the grant of general superintending control over all inferior courts is followed by the words, “under such regulations and limitations as may be prescribed by law.” The words last quoted are not in the Constitutions of the three other states named. The legislature has not seen fit, heretofore, to enact any limitations or regulations of the power of superintending control, though it has to some extent with reference to the appellate jurisdiction of the Supreme Court. The question then arises: As the legislature has enacted no regulations, can the Supreme Court exercise this power until such regulations are provided by law?
We believe this question should be answered in the affirmative, and that until the legislature imposes limitations, the inherent power of superintending control over all inferior courts vested by the Constitution in our Supreme Court, is as comprehensive as is the same power in the states of Missouri, Michigan and Wisconsin.
The Constitution of the United States vests the Supreme Court of the United States with original jurisdiction in all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party.
In all other federal cases section 2 of article III provides: "The Supreme Court shall have appellate jurisdiction both as to the law and facts, with such exceptions and under such regulations as congress shall make.”
It will be noted that the legislative power to create erceptions and regulations over the appellate power of the national Supreme Court is analogous to the right of the legislature to impose limitations and regulations concerning the exercise of superintending control by our state Supreme Court. It is well known that the Supreme Court of the United States in fact has only exercised the appellate jurisdiction provided for by congressional regulations; and more than this, has declined to exercise such jurisdiction in any other cases. From this, at first blush, it might be assumed that the question previously put should be answered in the negative.
But in United States vs. More, 3 Cranch, 159, when Jeremiah Mason argued to the United States Supreme Court that it should exercise appellate jurisdiction in cases other than those where congress had enacted regulations for its exercise, Marshall, C. J., delivering the opinion of the court, said:
“If congress had erected inferior courts without defining any of the causes in which writs of error or appeals should lie from such courts to this, your argument would be irresistible; but when the Constitution has given congress power to limit the exercise of our jurisdiction and to make regulations respecting its exercise; and congress under that power has proceeded to erect inferior courts, and has said in what cases a writ of error or appeal shall lie, an exception to all other cases is implied. And this court is as much bound by an implied as by an express exception."
Again, in the same case, the eminent chief justice says:
"This argument would be unanswerable if the Supreme Court had been created by law without describing its jurisdiction. The Constitution would then have been the only standpoint by which these powers would be tested, since there would be clearly no congressional regulation or exception on the subject. But as the jurisdiction of the court has been described, it has been regulated by congress, and an affirmative description of its powers must be understood as a regulation under the Constitution, prohibiting the exercise of other powers than those described. From this it is apparent, that if congress had simply created the Supreme Court without defining and regulating its jurisdiction, it would have exercised appellate jurisdiction over all federal courts, in all cases, and probably over state courts, as well, where federal questions were involved."
Referring to our state Supreme Court, it is created not by the legislature, but directly by the Constitution, which defines the number of its judges, etc. Its superintending control has not been regulated or limited by the legislature. The Constitution vests it with superintending control, and as the legislature has imposed no limitations on, and made no regulations of, the exercise of that power, it follows that the power as it now exists is plenary. Moreover, as we have already seen, in the case of The People vs. Richmond, where the appellate jurisdiction of the Supreme Court was incidentally under consideration, it was plainly intimated that if the legislature under its power of limitation and regulation should practically deprive the Supreme Court of all appellate jurisdiction, it would not recognize such usurpation of power. If by positive action the legislature can not de. prive the Supreme Court of all its appellate jurisdiction, certainly it could not have done so had it remained inactive and made no regulations or limitations concerning the same. The same principle must be true with reference to the power of superintending control. It is manifest that the failure of the legis. lature to impose limitations and regulations on that power can not deprive the court of the power.