dissenting:
A case was neither presented in the first instance nor made on the hearing, of which this court should assume original jurisdiction. For these reasons the writ should be discharged, and the proceedings dismissed.
Eule 38 of this court provides, in substance, that in an application made for a writ of mandamus or-any prerogative writ to be issued in the exercise of our original jurisdiction and for which an application might have lawfully been made to some other court in the first instance, the petition must set forth the circumstances which render it necessary that the writ should issue originally from this court, and not from some inferior tribunal.
Suit was originally instituted in the district court of Huerfano county by petitioner which he claims to have dismissed, and the only reason he *448assigns in his petition filed here, why this court should assume jurisdiction, is, that the district court was unnecessarily delaying a determination of the matter. A charge of this character ought to be firmly established, and not rest upon mere conjecture and innuendo. Let us briefly consider what the petition and evidence disclose on this subject.
On the 4th of April last petitioner instituted an action against respondent, and obtained an alternative writ, returnable on the 30th of that month. For return respondent filed a motion to quash the writ, based upon the ground that the legislature had no power to create the office of public examiner, and that the act creating the office was unconstitutional because, both in its title and in its body, it contained two subjects^ This motion was argued orally on the return day. Counsel for petitioner, at the close of the argument, requested the court to rule upon the question at once, which it declined to do. What was wrong about this action of the court, or wherein, because it declined to rule upon a case as soon as it was submitted, is it subject to criticism, or the charge that it is not discharging its duty? The constitutionality of the act, for the reasons assigned, is at least a serious one, and one which it was not only proper, but the duty of the court, to carefully consider. The cause presented here was submitted on the 5th of the present month, and yet an opinion has neither been handed down nor a decision announced at the time of this writing, although this court has been aided by briefs of counsel for petitioner, an aid which they declined to furnish the lower court. If several judges find it necessary to take time (which it is clear they are justified in doing on account of the questions presented), in order to properly consider a case, upon what theory can one judge be criticised for taking time to determine questions of *449grave importance, or why should he he charged in such circumstances with dilatory procedure?
It then appears that the district court gave respondent’s counsel twenty days in which to file a brief in support of his motion, and five days to reply to any brief which might be filed by counsel for petitioner. It is submitted that nothing is shown by this action which justifies the claim made by petitioner that the trial judge was guilty of dilatory tactics. No objection appears to have been made by counsel for plaintiff to this order. It is not unusual to give counsel a reasonable time within which to file briefs after a case has been submitted on oral argument. In fact, to refuse this privilege should generally be regarded by the bar as an assumption of knowledge of the law by judges in advance of what they are entitled.
Again, the district embracing Huerfano county contains several counties, and in fixing time for briefs it must be assumed that the judge consulted his con-. venience in discharging his duties to other litigants, and in holding court in other counties of his district. The return to the writ shows this to have been the fact.
It then appears that, later, an additional ten days was given counsel for respondent in which to file their brief. It must be assumed, until there is a showing to the contrary, that the judge had good reasons for granting this extension. There is no such showing.
May 26th counsel for petitioner received the brief of respondent, and at once wrote the judge that no brief would be filed by plaintiff in reply, and again' requested an immediate ruling. Was this fair treatment of the court? Was it not the duty of counsel for petitioner to have aided the court in announcing an earlier ruling on the motion by filing a brief com-*450batting the propositions advanced and argued by counsel for respondent? An examination of the majority opinion is convincing proof that the questions therein discussed and determined, which are practically the same a.s those presented to the district court, required careful consideration.
June 11th the court overruled the motion to quash. Prom the time the brief of respondent was filed it does not appear the court took an unreasonable period for the consideration of the case, when it is borne in mind that during that period other judicial duties devolved upon him. There are cases in this court which have been submitted much longer, with no decision as yet.
When the motion was overruled, the court gave respondent thirty days tó plead. Why this order was made we are not informed, but we must assume that proper showing therefor was made. At least, the attorney general is not in a position to complain. He was not present when the ruling was made; he did not ask for any order. His interest in the case seems to have been confined to letters and telegrams, urging an immediate ruling, without regard to what it might be; and now, after a ruling has been made, in these circumstances the charge is made that the court was willfully dilatory. There is nothing upon which to' found such a charge. Shortly, after the ruling the court adjourned for the term. • The attorney general cannot complain of this action. He made no request for a special session or for an adjourned term; and if it appears the cause was somewhat delayed in the district court, it is submitted the attorney general should be held, in a measure, responsible for this delay. It was his duty to give the case such attention as would have exhibited efforts on his part to secure an early final determinaton of the cause on its merits.
*451In the majority opinion it is said that if, through press of business, the district court was unable to finally hear the cause at an early date, this court will do so. Already, the docket of this court is crowded. The bar and litigants are clamoring for relief, and it is respectfully submitted, as will appear from a consideration of the next question discussed, that the case is of such trifling nature, and so utterly devoid of a single feature which justifies this court in assuming original jurisdiction, that it should not have taken time, at the expense of those whose cases are here in a regular way, to consider it.
The law under which petitioner claims the right to act was passed by the Seventeenth general assembly with an emergency clause, and took effect March 29, 1909. It provides that ■ the officers and offices embraced within the act shall be examined by the public examiner or other officials named at least once a year. It appears from the record that no offer was made by either of these officials to examine the office of the respondent for more than one year after the law took effect. Having neglected the plain duty imposed by law, it comes with poor grace now, on the part of petitioner, to insist that the refusal of respondent to permit an examination of the affairs of his office presents a question of such serious and grave import, and of such transcendent interest to the state that the original jurisdiction of this court should be exercised to compel the respondent to obey the law which petitioner himself has neglected to observe. It is only the office of the respondent which is involved. Not another official or officer named in the act has refused to submit to an examination. The petitioner has not been prevented in executing the law under which he assumed to act except in this one instance; at least, there is no showing to the contrary. To warrant this court in exercising the orig*452inal jurisdicton conferred upon it by the constitution, tbe case presented must not only establish grounds for relief, but, in addition, it must appear that it is of that supreme importance that the rights of the state will suffer if it does not—The People ex rel. v. McClees, 20 Colo. 403—and hence it follows, as applied, to the case at bar, this court should not assume original jurisdiction of a cause except when the interest of the state at large is directly involved.—People ex rel. v. The Clerk, 22 Colo. 280.
The office of the county clerk and recorder is of minor importance,' so far as the state is concerned. The only funds collected by the incumbent of that office in which the state is interested consists of hunting license fees, which, in the aggregate, amount to but a small sum. The refusal of the respondent to permit the examination which it is claimed he refused does not embarrass the state or its officials in executing the act of 1909, in so far as other officers' and officials are involved. The interests of the state at large are not involved. It would not have suffered injury of any moment, even if the contention of the petitioner is right in every particular, if this court had, as it should, refused to take original jurisdiction of the case he presented. In making these observations it is not intended to criticise any of the state officials interested in, or connected with, the case. If this court will assume original jurisdiction of a case which does not affect the state at large, the officials are not to be blamed for presenting it. The remedy lies with the court in refusing to take original jurisdiction of a case of such trivial nature. This, it is respectfully submitted, is what the court should have done. The interests of the state would have been far better served if the time consumed in hearing and considering this case had been devoted to the determination of cases brought here in the regular way. *453The rights of the state would not have been jeopardized had the case taken its regular course in the court below. The constitutionality of the act was upheld by the district court. That is the only important law question involved. In the face of this ruling there is no ground for assuming, as stated in the main opinion, that the enforcement of the law would be obstructed by other officials, especially when there is no showing that any other official has refused to submit the affairs of his office to an examination. When the case had been finally determined by the district court, if the defeated party was dissatisfied with the judgment, it could have been brought here for review. That is the only way, from the record before us, the case should have been considered by this court.
For the reasons given the writ should be discharged and the proceedings dismissed, and it is, therefore, unnecessary to consider the other questions argued by counsel.