dissenting.
We express no opinion on the merits of the controversy as discussed by Mr. Justice Bailey, for the reason that, in our judgment, the case presented by petitioners is not one which we should entertain by proceedings in prohibition. We regard this as the important question, because it is only in exceptional cases that the original jurisdiction of this court should be exercised. According to the established precedents this case does not fall within the exceptions. Prior to April, 1905, the original jurisdiction of this court was invoked so frequently, and so often exercised, that the usual and regular business of the court was greatly interfered with. A reference to the published reports embracing the decisions of this court prior to that date fully justifies this assertion. In order to properly limit the exercise of our original jurisdiction, we adopted the practice which has been uniformly followed by the supreme courts .of other states upon which original jurisdiction has been conferred by constitutional provisions similar to our own, that such• jurisdiction would not be .exercised except in cases involving questions publici juris, and not then where the question sought to be raised by proceedings in prohibition could be reviewed in the regular way; or, in other words, original jurisdiction under the constitution would not be assumed when the petitioner has an adequate remedy by appeal or writ of error. We so declared in the Benbow case, 37 Colo. 440, which is identical with the case at bar. We have extended the practice to applications for habeas corpus. In re Stidger, id. 407; in re *12Doherty, id. 422. When the opinions in the above cases were handed down, the members of the court as now constituted who were members then, joined in the conclusions announced. We know of no reason why we should now change our views on the subject.
Assuming- that a contest between two individuals for the office of county commissioner of Elbert county is involved, it does not appear that petitioners cannot have the judgment of which they complain reviewed in the regular way, or that their remedy by appeal or error is not adequate. Within about thirty days a regular term of court will convene in Elbert county, where the questions of law and fact presented by the case which it is sought to inhibit the district .court from further considering can be determined. The defeated party can bring the case here for review in the usual way. From the nature of the questions presented the cause would doubtless be advanced to a speedy hearing. It does not appear that in the interim the public will be injuriously affected by allowing the cause to take its regular course. In fact, according to' the opinion of the majority of the court, the only question presented is, which of two persons is entitled to the office of county commissioner of Elbert county. Neither their rights nor the rights of the public will be jeopardized by remitting the contestants- to the usual remedy.
The eases cited in the original opinion, from 11 and 29 Colorado, were considered by the court before the adoption of the practice to which we have adhered since April, 1905, consequently, in our opinion, are not in point upon the question of when we should exercise our original jurisdiction.
Upon complaint being filed in the court below, notice was given that on a day fixed an application for a temporary injunction would be made. On the date thus named, defendants moved to dismiss, be*13cause the case presented by the complaint was one of which the court did not have jurisdiction. This motion was overruled. The defendants then demurred, upon the ground that the complaint did not state facts sufficient to constitute a cause of action; that the court did not have jurisdiction of the subject-matter of the action; and that there was a misjoinder of parties. This demurrer was overruled, whereupon a temporary restraining order was made, inhibiting all parties to the action from holding a meeting of the board of county commissioners until the further order of the court. Thereafter the defendants answered. To their answer replication was filed. On the issues of law and fact thus formulated, and a further agreed statement of facts, a hearing was had, with the result that a judgment was rendered adverse to petitioner Pauls, to the effect that he refrain from interfering with Olson in the discharge of his functions as county commissioner, until he, Pauls, shall have established his right and title to the office of county commissioner, in the manner provided by law. The judgment further inhibited Brazelton from attempting to act as county commissioner, in conjunction with Pauls, until the latter should have established his right to the office of commissioner. Petitioners now seek to have that judgment annulled, upon the ground that the district court was without jurisdiction. Clearly, in the circumstances of this case that question should not be determined in prohibition, but should be reviewed at the appropriate time, on error. We have frequently and uniformly held that a writ of prohibition will not be allowed to usurp the office of a writ of error or appeal.—McInerny v. City of Denver, 17 Colo. 302. In the present case that practice is certainly violated, for the reason that petitioners are not seeking to prevent a judgment, but to annul one already pronounced.
*14There is a further reason why we should refuse to exercise jurisdiction in prohibition. The original complaint filed in the court below does not disclose that the right or title to the office of county commissioner of Elbert county is involved. The defendants, by their answer, injected that question into the case. In People ex rel. Vigil v. District Court of the Third Judicial District, 33 Colo. 66, we expressly held that the attempt, in an answer, to set up matters which would oust the district court of jurisdiction to entertain an action commenced therein could not be considered on an application for a writ of prohibition. In departing from this salutary rule of practice by considering the pleadings and agreed statement of facts presented to the court below, instead of ascertaining the question of jurisdiction from the complaint alone, the court has tried the merits of the controversy in order to ascertain whether the district court has the power to try them. Shall we stand by established precedent, and make the rule certain with respect to when ‘the original jurisdiction of this court may be invoked and exercised, or shall we exercise it according to our own notions of when a case demands it, without regard to previous decisions on that subject? The practice heretofore established makes it certain when our original jurisdiction in prohibition should be exercised. The departure from it in the case at bar leaves it uncertain, governed, as it is, by the individual views of the personnel of the court, without any fixed rule by which to determine it. As stated at the outset, we express no opinion on the merits - of the controversy because, for the reasons given, we should not assume jurisdiction by proceedings in prohibition.
I am authorized to state-that Mr. Justice Campbell concurs in this opinion.