dissenting.
In joining with the majority of the court to take original jurisdiction in this matter, I was in error, as my further study of the case convinces.
This action was instituted by the Attorney General upon his own relation and official capacity, and in the name and on behalf of the People of the state of Colorado. As disclosed by the record, the Attorney General, in my opinion, was without authority to thus proceed. There is no showing that he was required by the Governor . to institute this action, as is clearly necessary under our statute defining the duties of the attorney general. These duties are prescribed by section 1, chapter 13, ’35 C.S.A., which is as follows: “The attorney general shall attend in person at the seat of government during the session of the general assembly and the supreme court, and shall appear for the state, prosecute and defend all actions and proceedings, civil and criminal, in which the state shall be a party or interested, when required to do so by the governor or general assembly, and shall prosecute and defend for ■ the state all causes in the supreme court in which the state is a party or interested.”
In the Attorney General’s affidavit in support of his petition initiating these original proceedings in quo warranto, he states, “ * * * he was requested by the Governor of the State of Colorado to make a complete investigation concerning the status and conduct of Mark U. Watrous as Chief Engineer of the Colorado State Highway Department * * This is not an order of, or a direction from, the governor to institute this ouster proceeding. The action is beyond the scope of section 13 of article 12 of our state Constitution; neither does it come within the provisions of section 5, chapter 36, volume 2, ’35 C.S.A.
*296As it relates to persons in.the classified civil service, the constitutional provision is, “They shall be removed or disciplined only upon written charges which may be filed by the head of a department or by any citizen of the state * * * to be finally and promptly determined by the commission upon inquiry and after an opportunity to be heard * * The statute above referred to is a part of the laws made to enforce the provisions of the Constitution and is as follows: “The making and enforcement of rules to carry out the purpose of the constitutional provision and of this article; the alteration and rescission of such rules, the conduct of all competitive tests, the determination of all removal or disciplinary cases, the standardization of all positions, the determination of standards of efficient service and the determination of the grades of all positions in the classified service shall be vested in the commission. No person in the classified service shall be paid until a certificate is furnished by the commission that the appointment has been made pursuant to law.”
The Attorney General is the head of a department, but the constitutional provision does not relate to him other than on occasion when he might see fit to file charges against any of the subordinates in his department. This action is not by John W. Metzger as a citizen, but is in his capacity as attorney general, which is limited in such matters, as I have hereinbefore set out.
A second, and, in my opinion, more important reason why. we should not have accepted jurisdiction, is the fact that we are herein called upon to usurp the functions clearly vested in the Civil Service Commission, and no other. The commission has never had the opportunity to pass upon the matters and facts now shown to this court. By erroneously retaining jurisdiction, we open the door for a common practice to be set up by which boards and commissions primarily charged with these duties, are by-passed.
This court, having taken jurisdiction and permitted *297the filing of the petition, and the proceedings that followed, does not prevent the court, upon full consideration, from now correcting what, in my opinion, was the error made in accepting jurisdiction.
The court, having taken jurisdiction, has erroneously proceeded to a determination of the issues upon a motion ' for summary judgment and to its opinion thus disposing of the case on its merits, I dissent. The fact that counsel for both sides of the controversy agree and request that we dispose of the matter does not give us the authority or right to determine matters admittedly never presented to, or known by, the commission, and thus annul the plain language of the statute above quoted which says that the determination of all removal cases shall be vested in the commission. We cannot assume what the commission might have done had all the facts, as we now have them from the record, been before it. There is an adroitness apparent in the actions of Mr. Watrous in preparing his application which has been herein attacked. That there is something missing or avoided in the application cannot now be successfully denied, and it is virtually admitted in the majority opinion in the following words, “It would be absurd for us to assume that had the incidents been recalled and related by respondent in his application, any different determination of his application could possibly have been made by reason thereof.” Question No. 18 on the application is as follows: “Have you ever been arrested, summoned into court as a defendant, or indicted, or convicted, or fined, or imprisoned or placed on probation, or has any case against' you been filed, or have you ever been ordered to deposit collateral for alleged breach or violation of any law or police regulations or ordinances whatsoever?” The Watrous answer was, “No.”
In the majority opinion the court further states, “The emphasis of the language of section 18 of the form would clearly seem to be directed toward criminal cases, *298and it is clear that respondent so interpreted it.” Any layman with ordinary knowledge of the English language, much less a graduate civil engineer, would surely understand that, being summoned into court, or that “any case” had been filed against him, would also understand that violation of police regulations and ordinances, would call for a frank expression, and the truth, and that these matters cannot be brushed aside by the convenient interpretation as meaning criminal cases. Interrogatory No. 18, in its very words, was placed in the application for a specific reason, and the correct answer thereto was necessary for the full consideration of the fitness of the applicant by the com-, mission.
Real issues of fact have been presented by allegations and denials and under such conditions, a summary judgment is not warranted under rule 56, R.C.P. Colo. It is a drastic remedy and should not be employed unless it is absolutely clear that no genuine issue remains for trial. If the questions here raised were tested by trial, under oath of material witnesses, the truth could be ascertained and the right party prevail. If Mr. Watrous is right, as a hearing might disclose, then he is entitled to be vindicated. However, on the other hand, if he is wrong, justice requires that the state or public be not imposed upon. I again say that issues of fact are here presented that preclude summary judgment.
In my opinion, if I am in error as to my reasons given why we should not have entertained this petition, then the matter should be referred to a master to take testimony on the questions of fact presented and upon our consideration of such master’s report, we should either affirm the findings or refer the matter to the commission. Since this has now become a matter of public concern, the public, whose servants we are, should have full opportunity to know from the public records of a trial what this is all about.