99 Minn. 313 | Minn. | 1906
(after stating the facts as above.)
This is an application made directly to the supreme court under a statute which in express terms confers upon the court original jurisdiction to hear and determine election contests. The petitioner by his allegations has brought himself clearly within the provisions of the statute, and the court has jurisdiction to grant the relief sought, providing the legislature had the power to confer it. R. L. 1905, § 202, provides:
Review by Courts. Whenever it shall be made to appear by affidavit to any judge of the supreme court, or of the district court of the proper county, that an error or omission has occurred or is about to occur in the placing of any name on the primary election ballot, that any error has been, or is about to be committed in printing such ballot, or that any wrongful act has' been or is about to be done by any judge or clerk of a primary election, county auditor, canvassing board, member thereof, or other person charged with any duty concerning the primary election, or that any neglect of duty has occurred, or is about to occur, such judge shall order the officer or person charged with such error, wrong or neglect to forthwith correct the error, desist from the wrongful act, or perform the duty, or forthwith show cause why he should not do so. Failure to obey the order of such judge shall be contempt of court.
Sec. 203. Contests for Nomination. Any candidate at a primary election desiring to contest the nomination of another candidate for the same office may proceed by affidavit within five days after the completion of the canvass, as specified in*321 section 202; and the contestee shall be required by the order of such judge to appear and abide the further order of the court made therein.
The supreme court of the state is a constitutional appellate court, with original jurisdiction only in the particular instances in which it is expressly conferred by the constitution. Its appellate jurisdiction .is general and unrestricted; its original jurisdiction is special, and restricted. The general policy which was embodied by the people in that instrument is apparent upon the slightest consideration. The judicial system created by the constitution rests upon the theory that general original jurisdiction is vested in the district courts, which have succeeded historically to the ancient English court of King’s Bench. In these and inferior courts of original jurisdiction all cases are supposed to be heard and determined in the first instance. Over and above these courts is placed an appellate court, charged with the power of supervision, review, and cassation. The organization and constitution of that court is adapted primarily to the work of review only.
But under every system contingencies will arise which call’for the peremptory and prompt relief which only a court of final resort can grant. Under the English system, these instances were provided for by the King’s prerogative, by means of which relief was granted in cases where the ordinary courts were powerless, and no other adequate 'remedy was provided. In the course of time this great prerogative power came to be exercised by means of certain remedial writs, issuing in the King’s name out of the court in which the King theoretically or in fact was always present. Recognizing the occasional necessity for such extraordinary proceedings, the framers of the constitution provided that the supreme court “shall have original jurisdiction in such remedial cases as may be prescribed by law, and appellate jurisdiction in all cases both in law and equity, but there shall be no trial by jury in said court.” Const, art. 6, § 2. The legislature is thus authorized to confer original jurisdiction upon the supreme court in remedial cases, subject to the limitation that there shall be no trial by jury. It can confer original jurisdiction in no other cases.
The contention is that the proceeding which is authorized by the provisions of the Revised Laws above quoted is in substance and effect a mandamus proceeding, and hence within the constitutional grant of original jurisdiction. But the petitioner is seeking the order for a purpose in aid of which mandamus would not issue at common law or under the established practice in this state. The constitution only authorizes the legislature to confer upon the supreme court original jurisdiction in cases in which the remedy by mandamus would have
Upon the same principle of construction we must hold that the legislature has no constitutional power to require this court to exercise original jurisdiction through mandamus proceedings in cases in which mandamus was not the proper remedy at common law as understood and determined when the constitution was adopted. It was at that time thoroughly settled that mandamus was not a creative remedy. It did not call into existence any new liability or duty, and never commanded the performance of an act which was unauthorized in the absence of the writ.
The origin of this ancient writ is very obscure. It has undergone many changes during the generations in which it has been in use. It was originally a high prerogative writ, and the King’s prerogative was part of the common law of England. It was the aggregate of the King’s special powers and privileges — what Bracton calls privilegia regis, and Briton le droit le roy — the personal rights or powers of supreme character exercisable without question and without responsibility. 10 Enc. of Laws of England, 311. In the beginning the King doubtless sent his signet ring to attest the authority of his verbal message of command. The earliest writs were in the form of letters missive, and were mere personal commands. They were writs of direction, created and enforced by authority of the royal will — vobis
When our constitution was adopted, the writ of mandamus was granted only in certain well-defined cases. It issued only to command and compel the performance' of clearly defined duties which were already prescribed by law. 8 Enc. of Eaws of England, 96, and cases there cited. The present “existence of a legal right or obligation is the foundation of every writ of mandamus.” Eord
Thus a railway company sought the writ of mandamus to compel a board of public works to issue a permit authorizing it to open a street for the purpose of substituting electric power for horse power, but it was denied because it was not clear that the existing law made it the duty of the commissioners to issue the permit. People v. Newton, supra. Thereafter the legislature passed a statute which expressly imposed this duty upon the commissioners and upon a new application a writ of mandamus issued to compel performance of the duty thus clearly imposed by the statute. Ex parte Railway Co., supra.
It thus appears that the mere fact 'that a person claims legal rights and that he is entitled to have his rights determined in a legal proceeding does not entitle him to invoke the extraordinary remedy provided by the writ of mandamus. The distinction between cases which are triable in ordinary actions or in special statutory proceedings and
But section 203 in express words provides for the institution of and procedure for the trial of an election contest. Mandamus is not, and never was, the appropriate procedure for the trial of an election contest. This petitioner seeks the order of the court to compel certain persons and officials to do what they have no legal right to do without the order of the court. Mandamus will issue to compel a certificate of election to issue upon the returns, in accordance with a decision made by the proper body; but when it becomes necessary to go beyond the returns, and consider questions touching the legality of elections, or of fraud, illegal voting, or the like, mandamus is not the proper action, and it is necessary to resort to quo warranto, or such statutory proceedings as may be provided on such occasions. McCrary, Elec. (4th Ed.) § 398, citing State v. Churchill, 15 Minn. 369 (455). The statute now under consideration has provided a full and adequate remedy for the trial of such contests. Section 202 provides for an application to either the district or supreme court, and there is no doubt that the legislature has full power to confer original jurisdiction for the purposes therein referred to upon either court. It is equally clear that the legislature may authorize and direct the district courts to hear and determine election contests referred to in section 203 by means of the procedure provided for in section 202, but the supreme court can be authorized and directed to entertain original
The proceeding authorized by sections 202 and 203 is either an ordinary action, or a proceeding in the nature of mandamus. If the former, original jurisdiction to entertain it cannot, under the constitution, be conferred upon the supreme court. If the latter, it is not a case properly determinable by a writ of mandamus, as that writ was understood when the constitution was adopted, and has since been universally and consistently used. If the legislature may confer upon the supreme court original jurisdiction in ordinary actions by merely authorizing them to be tried in an action of mandamus, it may, by the mere expansion of the definition, confer original jurisdiction to try at least any civil action which may be tried without a jury. This cannot have been the purpose of the framers of the constitution or of the people by whom it was adopted. We therefore hold that section 203, in so far as it attempts to confer upon the supreme court original jurisdiction to hear and determine election contests, is invalid and unconstitutional. The application must be made, in the first instance, to the district court, and, after the issues have been there heard and determined, the proceedings will be subject to review on appeal.
Proceedings dismissed.