
    [No. 4941.]
    The People ex rel. The City and County of Denver v. The Court of Appeals et al.
    Certiorari — Refusal of Court of Appeals to Follow Opinion of ‘ Supreme Court.
    Where the supreme court held that petitions for writ of mandamus were sufficient and reversed the judgment of the lower court dismissing such petitions for insufficiency, and remanded the causes for trial and after trial and judgments in favor of the petitioner appeals were taken to- the court of appeals, where it was held that mandamus could not be sustained on the cases made in the lower court, if the decision of the court of appeals was wrong it was error committed in construing the facts and pleading and not a refusal of that court to be governed by the previous decision of the supreme court, and the action of the court of appeals cannot be • reviewed by the supreme court on certiorari.
    
      Original Proceedings in Certiorari.
    
    Mr. H. A. Lindsley and Mr. John IT. Reddin, for petitioner.
    Messrs'. Dines, Whitted & Dines, Messrs. Teller & Dorsey, Messrs. Wolcott, Yaile & Waterman and Mr. W. W. Field, for respondents. ,
   Chief Justice Gabbert

delivered the opinion of the court.

The only question to consider in disposing of this application is whether or not the court of appeals has refused to be guided or controlled by the law applicable to the causes which it is sought to have reviewed by this court on certiorari, as declared in a previous decision of this court. In People v. U. P. Ry. Co., 20 Colo. 186, it was decided that the petitions under consideration, which had been dismissed below for insufficiency, were sufficient in form and substance to entitle the city to the relief demanded by mandamus. It was also said that when the causes were fully presented to the trial court on the pleadings and proof, it would be for that tribunal, upon the facts and circumstances then developed and the law applicable thereto, to determine whether or not the city was entitled to such relief. The causes were reversed and remanded to the trial court for further proceedings. Trials have been had and judgment rendered in favor of the city in each of the causes. Prom those judgments an appeal was prosecuted to the court of appeals. — Burlington & C. R. R. v. People, 20 Colo. App. 181, 77 Pac. 1026. It was there held that on the cases made below proceedings in mandamus could not be sustained, and for this reason it is contended that the court of appeals has refused to be guided by the opinion of this court announced in People v. U. P. Ry. Co., supra. The contention of petitioner is fully and clearly answered by the court of appeals in an opinion rendered on petition for rehearing. This court did not decide anything more than that the petitions before it were sufficient to state a cause of action in mandamus. It expressly left the question open for determination by the trial court as to whether or not the actions could be maintained upon the facts developed at the trial. The court of appeals, in reviewing these judgments, has decided from the facts established that mandamus was not the appropriate remedy. If that decision is wrong, it is because the court' of appeals has committed error in construing the facts and pleadings, and not because it has gone contrary to the previous decisions of this court in the same cases. That question cannot he reviewed on certiorari.— People ex rel. v. Court of Appeals, 32 Colo. 355.

The writ is denied and proceedings dismissed.

Writ denied.

Mr. Justice Steele and Mr. Justice Campbell concur.  