I66
THE GREEN BAG
stitutes judicial as distinguished from legis lative and executive questions, proceedings and powers are pretty well defined and understood. Let us consider the situation which was before the court when its jurisdiction was invoked. It is difficult to conceive of any matters of fact, any probable contingencies, any considerations of policy, any anticipated dangers to the liberties of the people which were before the court, which had not also been before the legislature when it enacted what appears to be a complete code of laws for the control of elections and the protection of the political liberties of the people. It must be assumed that it did not choose to add more to what it enacted. Among other things it fixed certain definite penal sanctions to insure the enforcement of the laws. The court by issuing its injunction simply added to those sanctions. Under the circumstances was that not a simple piece of judicial legislation? For note that the penalty im posed by the statute and by the court for disobedience of the one and of the other was imposed for breach of the same duty, the duty to the state to obey the statute. Quite different are all those cases where there is a duty not only to the state but also to a private party and the court having proper cognizance of the latter in the performance of its ordinary judicial function restrains the commission of what constitutes not only a private wrong but also a crime. We have here a clear instance of a court of equity en joining a crime where none but public and purely political rights were involved and where no conceivable grounds of ordinary equitable jurisdiction existed. The prospect of a more speedy and certain punishment had possibly some deterrent effect upon those who inclined to commit frauds, but the question naturally comes to mind, why did not the legislature make some provision for such more speedy and certain punish ment if it was its desire that disobedience of the law should be punished in that manner? It would seem that the court
might well have acted upon the principles it laid down for the guidance of inferior courts in the following language: "However desirable or convenient it might be to put a stop to criminal practices (in this instance gambling) by invoking the extraordinary writ of injunction, we cannot permit the constitutional and statutory rights of individuals to be thus violated. We cannot allow the writ of injunction to usurp and take the place of the orderly processes of the criminal law which the constitution and the legislature have provided. Such a course as the district judge adopted, if approved by us, would make of a single judge both court and jury in the trial of a criminal action whose sole object is to punish one for committing a crime; and if a defendant re fused to obey his injunctive order, there could be no redress from a sentence for contempt imposed for its violation. Such an unlimited power is too great to confer, at least it has not yet been intrusted, to any judge or court by the constitution or laws of this state." l Are not these same observations fairly applicable to two judges who form the majority of a court even though the court be the highest judicial tribunal in the state? The court might also . have said that the primary function of a court is the exercise of judgment, that of the executive, action, and that in cases where the law is clear, simple and positive, where there is no need of construction, and no difficulty in the application of the law to facts, the naked enforcement of the law becomes purely an executive function. The truth is that the court 'by the process of injunction is as help less as the legislature is helpless to compel enforcement of the law. The nature of the case requires reliance, first, upon the in tegrity and law-abiding inclination of execu tive and administrative officers; and sec ondly, upon penal sanctions. In another aspect, even assuming that 1 People ex rel. L'Abbe v. District Court, 26 Colo. 397.
