North Point Consolidated Irrigation Co. v. Utah & Salt Lake Canal Co.

Miner, J.:

Plаintiff filed its complaint, and obtained an order to show cause why an injunction should not be issued against the defendants restraining them from longer discharging the waste and befouled waters of a certain artificial drain ditch from Decker’s Lake into the surplus water canal, and in and upon the lands of the plaintiff. Upon a hearing of this order for temporary injunction the court granted an injunction pendente lite, and on the 8th day of June, 1896, the defendants appealed from the order granting such injunction. Respondent now moves to dismiss the appeal, on the ground that no appeal lies to this court from an order granting an injunction pendente Ute, and for the further reason that such order is not a final judgment under section 9, article 8, of the constitution of this state, and that no appeal lies except from a final judgment.

Section 4 of article 8 of the constitution of this state reads as follows: ‍‌​​‌‌‌‌‌​‌‌​​​​​‌​​‌‌‌​‌‌‌​‌​​‌‌​‌‌​‌‌‌​‌​​‌‌​‌‌‍“The supreme court shall have original jurisdiction to issue writs of mandamus, certiorari, prohibition, quo warranto, and habeas corpus. Each of the justices shall have power to issue writs of habeas corpus, to any part of the state, upon petition by or on behаlf of any person held in actual custody, and may make such writs returnable before himself or the supreme court, or before any district court or judge thereof in the sítate. In other cases the supreme court shall have appellate jurisdiction only, and power to issue writs necessary and proper for the exеrcise of that jurisdiction. The supreme court shall hold at least three terms every year, and shall sit at the capital of the state.” Section 9 of article 8 reads as follows: “From all final judgments of the district courts there shall be a right of appeal to the supreme court. The appeal shall be upon the reсord made in the court below, and under such regulation as may be provided by law. In equity cases the appeal may be on questions of both law and fact; in cases at law the appeal shall be on questions of law alone. Appeals shall also lie from the final orders and decrees of the court in the administrаtion of decedent estates, and in cases of guardianship, as shall be provided by law. Appeals shall also lie from the final judgment of justices of the peace in civil and criminal cases to the district courts on both questions of law and fact, with such limitations and restrictions as shall be provided by law; and the decision of thе district courts on such appeals shall be final, except in cases involving the validity or constitutionality of a statute.”

Under section 4, tbe supreme court is given original jurisdiction to issue writs- of mandamus, certiorari, prohibition, quo warranto, and habeas corpus. In these cases named it is clear the supreme court has original jurisdiction. This language follows: “In other cases the supreme court shall have appellate jurisdiction only, and power to issue writs necessary and proper for the exercise of that jurisdiction.” The question, in what other cases has the supreme court appellate jurisdiction? is answered by section 9: “From all final judgments of the district courts there shall be a right of appeal to thе supreme court. Appeals shall also lie from the final orders and decrees of the court in the administration of decedent estates, and in cases of guardianship, as shall be provided by law. Appeals shall also lie from the final judgments of justices of the peace in civil and criminal cases, to- the district cоurt on both questions of law and fact, with such limitations and restrictions as shall be provided by law; and the decision of the district court on such appeal shall be final, except in cases involving the validity or constitutionality of a statute.” The term in “-other oases” cannot mean in all other cases, because, as is seen in section 9, the decision of the district court is made final and conclusive in appeals thereto from justices of the peace, except in stated cases. The legislature is given power to provide by law concerning appeals in probate cases, but no such power is conferred upon the legislature concerning final appeals from the district court. It is clear that the “other cases” referred to in section 4 has reference to those appeals from final judgments referred to- in section 9, and no other.

This brings us to the further consideration of section 9. Whether this court has jurisdiction of this appeal depends upon the construction given that section. If the constitution gives a mere guaranty of the right of appeal from final judgments of the district courts, the power is reserved in the legislature to give a right of appeal in other cases. But, if the constitution gives not only a guaranty of the right to appeal from final judgments, but by implication a denial of the right of appeal in other cases, then the court has no jurisdiction of the appeal in this case. “A constitution is not to be interpreted on narrow or technical principles, but liberally, and on broad,, general lines, in order that it may accomplish the object of its establishment, and carry out the great principles of the government. The words are not to be stretched beyond their fair sense, but within that range the rule of interpretation must be taken which best follows out the apparent intention of its ‍‌​​‌‌‌‌‌​‌‌​​​​​‌​​‌‌‌​‌‌‌​‌​​‌‌​‌‌​‌‌‌​‌​​‌‌​‌‌‍framers.” Black, Interp. Lawrs, p. 13. “One part may qualify another so as to restrict its operation or apply it otherwise than the natural construction would rеquire if it stood alone by itself. But one-part is not to be allowed to defeat another if by any reasonable construction the two can be made to stand together. In interpreting clauses we must presume that words have been employed in their natural and ordinary meaning.” Cooley, Const. Lim., p. 72. “Under every constitution the doctrine of implication must be resorted to in order to carry out the general grants of power. So every positive direction contains an implication against anything contrary to it, or which would frustrate or disappoint the purpose of that provision, as strongly as if a negative was expressed in every sentence.” That which is implied by statute is as much a part of it as what is expressed. Id., pp. 78-105; Suth. St. Const. § 334. The maxim, “Expressio umus est exclusio alterius,” is usually applied to determine the intention of tbe lawmaker where it is not otherwise expressed, and is applicable to constitutional or statutory provisions which grant originally a power or right. When a statute defining an offense designatеs but one olass of persons as subject to its penalties, all other persons are deemed bo be excluded. As a general rule, the expression of one thing in a constitution or statute excludes all others. So specific provisions, relating to particular subjects, must govern in relation to that subject, as against gеneral provisions in other parts of the law which might otherwise be broad enough -to include it. Where a statute enumerates the persons or things to be affected by its provision®, there is an implied exclusion of others, and the natural inference follows that it is not intended to be general. A national bank-being granted the powеr to loan money on personal security, such banks are held precluded from loaning on real estate mortgages. Suth. St. Const. §§ 325-327; Fowler v. Scully, 72 Pa. St. 456.

The appellate jurisdiction of the federal supreme court is conferred by the constitution of the United States “with such exceptions, and under such regulations, as congress may make.” Article 3, § 2. Therefore acts of congress affirming such jurisdiction have always been construed as excepting from it all cases not expressly described and provided for. Ex parte McCardle, 7 Wall. 506; Durousscau v. U. S., 6 Cranch 312; Suth. St. Const. § 327. As explained in Durousseau v. U. S., 6 Cranch 312, the court said: “Thus a writ of error to the judgment of a circuit court, where the matter in controversy exceeds the value of $2,000. There is no express declarаtion that it will not lie where the matter in controversy shall be of less value. But the court considers this affirmative description as manifesting the intent of the legislature to except from its appellate jurisdiction all cases decided in the circuits where the matter in controversy is of less value, and implies negative words.” So, аs a general rule, an affirmative grant of power will imply an exclusion of all others. Potter’s Dwar. St. pp. G74, 675. So, where technical words are used in a constitution, the technical meaning is to be applied to them,' unless it is repelled by the context. 1 Story, Const. § '453. In construing constitutions, the doctrine that what is implied is as much a part оf the instrument as what is expressed is a necessity by reason of the inherent inability to put all private power into words. Rhode Island v. Massachusetts, 12 Pet. 657; Ex parte Yarbrough, 110 U. S. 651.

Under the light of these general principles and decisions, what is the meaning of the term used in the constitution, “Fr'om all final judgments of the district courts', there shall be a right of appeal to the supreme court,” when viewed in connection with the balance of the section? It will be noticed that the word “final,” or “final judgment” is used in connection with appeals from the district courts, appeals from the probate courts, and appeals from justices’ courts; while a right of appeal from all ‍‌​​‌‌‌‌‌​‌‌​​​​​‌​​‌‌‌​‌‌‌​‌​​‌‌​‌‌​‌‌‌​‌​​‌‌​‌‌‍final judgments to the district court is expressly grаnted. Yet the same section expressly grants the right of appeal from the final orders and decrees of the court in decedents’ estates, and limits the night of appeal from final judgments in justices’ courts to' the district courts. The word “final” or “final judgment” has a plain meaning. A judgment, to be final, must dispose of the case as to all the parties, and finally dispose of the subject-matter of the litigation on the merits of the case. Champ v. Kendrick, (Ind. Sup.) 30 N. E. 635. Uouvier defines a final judgment as used in opposition to interlocutory as “A final judgment is a judgment which ends the controversy between the parties litigant.” “The general rule recognized by the courts of the United States and by the courts of most, if not all of the states, is that no judgment or decree will be regarded as final, within the meaning of the statutes in reference to appeals, unless all the issues of law and of fact necessary to be determined were determined, and the case completely disposed of, so far as the court had power to disрose of it.” Freeon. Judgm. § 34. If appeals can be taken from interlocutory orders and judgments not final, from the district court to the supreme court, it follows that for the same reason appeals may be taken from rulings and decisions not final, from a justice court to a district court, and from the district court to the supreme сourt. It would be just as reasonable to allow an appeal from an order overruling a demurrer or granting a motion for a new trial, before final judgment, from a justice of the peace, as to allow an appeal from an order granting a temporary injunction pendente lite from the district court to the supreme court. In neither case would the appeal be from a final judgment. Yet the constitution is as explicit in allowing appeals in one case from final judgments as in the other. In each the right of appeal is from a final judgment. If the intention was to guaranty the right of appeal from a final judgment, and1 confer upon the legislature implied рower to authorize appeals in all other cases from the district courts, then the same guaranty with, implied power is also retained, and to be applied to justices’ courts as well as to courts in the administration of estates. It would be no answer to this that the legislature had previously conferred the power in thе one case and withheld it in the other. If the power exists in the legislature, the right could be conferred upon justices' courts at any time. It is apparent that such an unfortunate construction or implication was not contemplated nor intended. It would be presuming too much to say that the framers of the constitution were fearful that tlie legislature would euaot laws preventing appeals from final judgments, and that, therefore, this provision was inserted, giving a guaranty of the right of appeal from such judgments, thus leaving to the legislature the right to enact laws allowing appeals from interlocutory orders. Especially is this so when we consider the faсt that nearly every state in the Union allows appeals from .final judgment, and restricts or prohibits appeals from interlocutory orders as being against the policy of the law. The framers of the constitution could not have anticipated that the legislature would do an unreasonable thing, and thus take away the right of aрpeal from a final judgment, when that right has grown to be almost inherent, and yet use words sufficient to authorize it to do- that which in most states is considered questionable, and by eminent law writers to be against the policy of the law.

In granting the right of appeal from all final judgments the people intended to grant the night of appeal frоm, all final judgments only. The supreme court, being a creature of the constitution, has only sneh powers as are therein conferred upon it. The only jurisdiction that is conferred by the constitution upon the supreme court in appeal cases is appeals from final judgments. There is no express declaration that appeals will not lie from judgments other than final judgments. But the court considers the affirmative declaration, ‍‌​​‌‌‌‌‌​‌‌​​​​​‌​​‌‌‌​‌‌‌​‌​​‌‌​‌‌​‌‌‌​‌​​‌‌​‌‌‍as used in the section,- that “from all final judgments of the district court, there shall be a right of appeal to the supreme court,” as manifesting the intent of the framers o-f the constitution to except from the appellаte jurisdiction of the- supreme court appeals from .the district courts, other than appeals from final judgments. This intention and implication is founded on the manifest intent of the framers o-f the constitution, and upon the general rules of construction that the expression- of one thing in the constitution implies the necessary exclusion •of things not expressed. We are of the opinion that when the framers of section 9 used the terms “from all final judgments of the district court there shall be a right of ■appeal to the supreme court,” they intended to deny the right of appeal to the supreme court in all other cases, although no express terms of negation were used, and that so much of subdivision 3 of section 3635, Comp. Laws Utah 1888, authorizing appeals from orders granting an injunction, is abrogated and annulled by this section of the constitution. Durousseu v. U. S., 6 Cranch 307; Ex parte Attorney General, 1 Cal. 85; Ex parte McCardie, 7 Wall. 506; U. S. v. Arredondo, 6 Pet. 723; 725; Suth. St. Const. §§ 325-327; Fowler v. Scully, 72 Pa. St. 456; Cooley, Const. Lim. pp. 78-105; Story, Const. §§ 413-453; State v. Hallock, 14 Nev. 202; Ex parte Vallandigham, 1 Wall. 251; Railroad Co. v. Grant, 98 U. S. 401; Page v. Allen, 58 Pa. St. 338; Barry v. Mercein, 5 .How. 103; Potter’s Dwar. St. 674, 675.

The policy of the laws of the several states and of the United States is to prevent unnecessary aрpeals. It is not the policy of Courts to review cases by piecemeal. The interests of litigants require that cases, shall not be prematurely brought to the highest court. The errors complained of may be corrected in the court in which they originated; or the party injured by them might, notwithstanding the injury, have final judgment in his favor. If a judgment intеrlocutory in its nature were the subject of appeal, each of such judgments rendered in the case •could be brought before the appellate court, and litigants harassed by useless delay and expense, and the courts burdened with unnecessary labor. Freem. Judgm. § 33. The reason of the rule is obvious. A party against whom an interlocutory order is made may have all his wrongs redressed and his rights protected upon a final hearing, ■and therefore he has no ground of complaint. If these rights are not protected on a final hearing in the trial court, the error can be corrected -on appeal from the final judgment.

We conclude that an appeal from an order pendente lite granting a temporаry injunction is not an appeal from a final judgment, and that such an order is not ‍‌​​‌‌‌‌‌​‌‌​​​​​‌​​‌‌‌​‌‌‌​‌​​‌‌​‌‌​‌‌‌​‌​​‌‌​‌‌‍a final judgment, from which an appeal will lie to this court, under section 8 of the constitution. Artman v. Manufacturing Co. (Neb.) 20 N. W. 873; Baker v. White, 92 U. S. 176; Telegraph Co. v. Locke, (Ind. Sup.) 7 N. E. 579; Hume v. Bowie, 148 U. S. 245; Freem. Judgm. § 34; Bank v. Jenkins, 109 Ill. 219; Bostwick v. Brinkerhoff, 106 U. S. 3; Hill v. Railroad Co., 140 U. S. 52. See Stewart v. Masterson, 131 U. S. 151; Walker v. Oliver, 63 Ill. 200; Brown v. Edgerton (Neb.) 16 N. W, 474; Tinly v. Martin, 80 Ky. 463; Truett v. Rains, 17 S. C. 451; Ray v. Northrup, 55 Wis. 396; Bolles v. Stockman, 42 Ohio St. 445; Dows v. Congdon, 28 N. Y. 122.

It is contended that the appellants’ right of appeal is guarantied under the statute. A citizen has no vested right in statutory provisions and exemptions. A statutory right to hаve cases reviewed on appeal may be taken away by a repeal of the statute, even as to cases which have been previously appealed. In this case the constitution has taken away the right of appeal from an interlocutory order granting the temporary injunction appealed from. Cooley, Const. Lim. pp. 471-473; Railroad Co. v. Grant, 98 U. S. 398; Ex parte McCardle, 7 Wall. 506. The appeal from the order granting the injunction is dismissed, with costs,.

Zane, C. J., concurs. BaRTCh, J., disqualified to sit in the case.

Case Details

Case Name: North Point Consolidated Irrigation Co. v. Utah & Salt Lake Canal Co.

Court Name: Utah Supreme Court

Date Published: Oct 29, 1896

Citation: 46 P. 824

Docket Number: No. 740

Court Abbreviation: Utah