Page:The Green Bag (1889–1914), Volume 17.pdf/174

 RESORT TO THE JUDICIARY

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RESORT TO THE JUDICIARY TO PRESERVE THE PURITY OF ELECTIONS A RECENT COLORADO CASE REVIEWED BY WILLIAM E. HUITON THOSE who view either with equanimity or misgiving the tendency of the times to enlarge the use of the writ of injunc tion and to extend it to new purposes will find food for reflection in the case of the People of the State of Colorado, ex. rel., Attorney General v. Tool et al. recently before the supreme court of that state. The case is of interest for two reasons, first, as showing the extraordinarily broad powers vested in the supreme court under the pre vailing construction of the state constitution, and secondly, as showing the extent to which reliance is placed upon the judiciary to protect even political rights and liberties against designing or corrupt officials. We are accustomed to the exercise by the courts of a controlling power over executive and administrative officers while in the performance of certain functions of a nondiscretionary character. This power how ever has been marked by certain well under stood and well defined limits. Mandamus is the process by which it is ordinarily exercised, and in a general way the cases in which that remedy may be invoked indicate the main limitations upon the jurisdiction of the courts over executive or administra tive action. These cases disclose inter alia three notable limitations upon the issuance of this writ. It will not issue in anticipa tion merely of a wrongful action, nor to control discretion, nor to compel action contrary to law. The first is a leading feature of the jurisdiction of the writ al though not universally regarded. Until an official has either failed to act when by law required to do so or has acted in a wrongful manner the general rule is a court will not presume to direct him. The court will not anticipate that a public official will do other

than his lawful duty. It presumes that he will be faithful to his trust. Such has been a hitherto generally understood boundary line between judicial and executive authority. Of late however in some states there is a marked tendency to use the writ of injunc tion to restrain and prevent anticipated breaches of public duty. A striking illustra tion of this tendency is to be found in the case which forms the subject of this article. It is worthy of a full and careful statement.1 The State of Colorado, in its sovereign prerogative capacity, on the relation of its attorney -general, filed its original bill in the supreme court of the state, invoking the original prerogative jurisdiction of that court, as conferred by the terms of the state constitution, for the purpose of securing an injunction against the various local election officials of the City and County of Denver, its police officials and divers other lo cal officials and persons to prevent certain wrongful and illegal acts threatened and anticipated to be committed at the general election to be held on November 8, 1904, and for certain other relief. The general scope and purpose of the bill was to secure a judicial enforcement of the various statutes of the state relative to the holding of elec tions, the counting of votes, certifying of returns and the canvassing thereof. Various national, state and local officers were to be voted for at said election. The theory upon which the bill was framed was that a systematic and widespread con spiracy existed among practically all of the local officers, including the police, sheriff, prosecuting attorney and those specially charged with the administration of the ' The statement is drawn from a brief of the Attorney-General.