37 Colo. 443 | Colo. | 1906
Lead Opinion
delivered the opinion of the court:
The only question presented for our consideration is the.one of the jurisdiction of the district court, the authority of which is raised by the petition for a writ of prohibition. Prior to the election held in the city and county of Denver on the 15th day of May last, a petition, or what was also termed an original bill in equity, was filed in the district court presided over by the respondent judge. The purpose of the election was to elect certain officials for the city and county of Denver and to submit the question of granting or refusing certain franchises to certain named corporations. The petition was by
Our constitution provides: ‘ ‘ The supreme- court, except as otherwise provided in this constitution, shall have appellate jurisdiction only, which shall be coextensive with the state, and shall have a general superintending control over all inferior courts, under
The next section provides: “It shall have power to issue writs of habeas corpus, mandamus, quo warranto, certiorari, injunction and other remedial writs, with authority to hear and determine the' same.”
The jurisdiction of the district courts of the state is designated by section 11, of article VI, as follows: “The district courts shall have original jurisdiction of all causes, both at law and in equity, and such appellate jurisdiction as may be conferred by law.”
On behalf of respondent, counsel urge that, by virtue of these provisions and on the authority of the Tool case, decided by this court in 1904, in which jurisdiction was assumed to secure an honest election in certain precincts of the city and county of Denver (the election was state and national), that the district, court has the same power and authority as this. This position is manifestly untenable, for the obvious reason that, to so hold, would render the original jurisdiction of this and the district courts the same — would make them courts of concurrent jurisdiction, and thereby this court would be entirely without authority to review, on appeal or error, any judgment of a district court rendered in such causes. The rule is settled beyond dispute that courts of concurrent jurisdiction cannot review the action of each other. It certainly was never the intention of the framers of the constitution to provide that a court consisting of one judge should have the same power as that vested, at the time of its adoption, in three, and now, by an amendment, in seven. It certainly was not the purpose of the constitution to vest in the supreme court and district courts the same original jurisdiction, and thereby deprive the supreme court of the power to review the action of the district court
It is a canon of construction that effect must be given to every part of the language employed in a law, unless to do otherwise is clearly justified. It is also a maxim of the law that the mention of one thing is the exclusion of the other. This maxim is particularly applicable when that which is expressed is creative, for then it becomes exclusive. The constitution must be construed as a whole, and given that construction of which it is susceptible which will render its various parts harmonious, and express the purpose and intent of the people in adopting, it. It will be observed that the language of the constitution conferring jurisdiction upon the district 'courts is that these tribunals “shall have original jurisdiction of all causes, both at law and in equity,” while the language employed in conferring original jurisdiction upon the supreme court is that “it shall have power to issue writs of habeas corpus, mandamus, quo ivarrcmto, certiorari, injunction, and other remedial writs, with authority to hear and determine the same.” The difference is marked. One confers jurisdiction of causes; the other confers the power to issue certain writs, with authority to hear and determine. Evidently there was a purpose in employing this difference in language, and that purpose could have been none other than to designate the character of actions of which the respective courts should have original jurisdiction. The fundamental law creates the jurisdiction of each. By so doing, it necessarily excludes from the one the jurisdiction it confers upon the other. . Unless so construed, effect is not given to every part of the language employed
The important question to determine is, In what class of cases was original jurisdiction conferred upon the supreme court by virtue of the constitutional provision on the subject? — because it is manifest, for the reasons given, that, as to this class of cases, original jurisdiction was not conferred upon, nor can it be exercised by, any other tribunal. In determining this question, we shall consider the character of the writs mentioned, the court authorized to issue them, and the proceedings in which they may be employed, according to the rules of the common law. We say “according to the common law,” because constitutional provisions are to be cohstrued with reference to that system of jurisprudence. The framers of our constitution are presumed to have intended no change or innovation in the common law further than is expressly or by necessary implication declared. Many provisions of the constitution and of our statutes could not be understood without reference to the common law. — 6 Am. & Eng. Enc. Law (2d ed.) 931; Moore v. United States, 91 U. S. 270, 274; Cooley’s Constitutional Limitations, *60.
The constitution of a state is not the beginning of the law for a state. Under our system of jurisprudence, it assumes the existence of the common law from which we must draw in interpreting its provisions, under such limitations as the constitution itself imposes.
'Wisconsin has a constitutional provision which, in 1853, at the time when it was construed by the supreme court of that state, was identical with our own as it existed in 1885. It provided: The supreme court “ shall have power to issue writs of habeas corpus; mandamus, injunction, quo warrcmto, certiorari and other original and remedial writs, and to hear and determine the same.”
The only difference between the Wisconsin provision and ours, as amended subsequent to 1885, is, that the words “original writs” have been omitted, so ours now reads “and other remedial writs” instead of ££ and other original and remedial writs. ’ ’
The pioneer case upon the subject determining the character of the writs named in the Wisconsin constitution, and which has been followed by the supreme court of every state having a similar one, is Attorney General v. Blossom, 1 Wis. 317, decided in 1853, where it was expressly held that these writs were .prerogative. This view was adopted and followed in 1874, in the celebrated case of Attorney General v. Railroads, 35 Wis. 425, the opinion being by that eminent jurist, and one of the ablest judges this country has ever produced, Mr. Chief Justice Ryan.
The supreme court of South Dakota, in 1890, in the case of Everitt v. Board of County Commissioners, 47 N. W. 296, in considering a constitutional provision similar to our own, held that these writs were
Prom cases on the subject of prerogative common-law writs, we learn that they could only be issued by the highest court of England, which was vested with power to review the proceedings of and keep all inferior courts within the bounds of their authority.
In Kendall v. United States, 12 Pet. (U. S.) 608, the court had under consideration the character of the writ of mandamus, and declared it to be a prerogative writ of the common law. In considering, what court, according to the common law, was authorized to issue such prerogative writ, Mr. Chief Justice Taney, at page 629 of 12 Pet., said:
“But, by the principles of the common law, and the laws of Maryland as they existed at the time of the cession, no court hád a right to issue the prerogative writ of mandamus unless it was a court in which the judicial sovereignty was supposed to reside, and which exercised a general superintendence over the inferior tribunals and persons throughout the nation or state. In England, this writ can be issued by the king’s bench only-. It cannot be issued by the court of common pleas] or any other court-known to the English law, except the court of king’s bench.”
And, in'speaking of the authority of that court, quoted the following from Blackstone: ‘ ‘ The jurisdiction of this court is very high and transcendent. It keeps all inferior jurisdictions within the bounds of their authority, and may either remove their pro
After further comments on the character of the writ, and the authority of the court of king’s bench to issue it, the learned chief justice says: “It is therefore evident that, by the principles of the common law, this power would not be incident to any court which did not possess the general superintending power of the court of king’s bench, in which the sovereignty might, by construction of law, be supposed to sit.”
Mr. Justice Thompson, who also delivered an opinion in the same case, after stating that the writ of mandamus is a prerogative writ, said: “And the power to issue this writ is given to the king’s bench only, as having the general supervisory power over all inferior jurisdictions and officers, and is coextensive with judicial sovereignty. And the same theory prevails in our state governments, where the common law is adopted and governs, in the administration of justice; and the power of issuing’ this writ is generally confided to the highest courts of original jurisdiction.”
What was said by the highest tribunal in this country with respect to one of the prerogative writs of the old common law, is necessarily applicable to all others of the same class, in SO' far as the questions in the case at bar are involved. In the Wheeler case, supra, this court recognized that the writs designated -in the constitution, which the supreme court was empowered to issue by virtue of the original jurisdiction conferred, bore- no resemblance to the usual process of courts by which controversies between private parties are settled *by judicial tribunals of every grade, and that the ordinary process by which delinquent parties are brought before courts to respond for purely private injuries was not in the
In the ease of Attorney General v. Blossom, supra, the court, in the course of the opinion, said: ‘ ‘ This class of writs, it would seem, appertain to and are peculiarly the instruments of the sovereign power acting through its appropriate, department, prerogatives of sovereignty, represented in England by the king and in this country by the people in their corporate character, or, in other words, the state1, and from their very nature, from their peculiar character, functions and objects appertain to and appropriately belong to the supreme judicial tribunal of the state. Being prerogative writs, they do not pertain to courts of inferior jurisdictions. # * * These writs differ essentially in their character and objects from ordinary writs issued by the courts in the regular and usual administration of the law between parties. They go to accomplish peculiar and specific objects, carrying with them the special mandate of the sovereign power, addressed to the person, corporation or officer, requiring them to do or not to do, to proceed or to desist, to perform the duty required by law, or to abstain from the exercise of power without lawful authority. ■ They bear no resemblance to the usual processes of courts by which controversies between private parties are settled by the judicial tribunals of every grade. Hence, it would seem to be apparent that the appropriate court in which the jurisdiction of this class of writs should be lodged is the supreme court of the state, and something more than mere implication is required to
In Everitt v. Board, supra, the supreme court of South Dakota, speaking of the courts from which these writs may issue-, said: ‘ ‘ These writs, being in their nature- prerogative, or g-wasi-prerogative, appertain to, and are, the peculiar instruments of the sovereign power, acting through its appropriate departments, and from their nature belong to the highest court of the state.” On this subject the decisions of the supreme court of North Dakota, to which we have already referred, are that the power to issue these prerogative writs is vested in the supreme court alone.
The views expressed in the "Wheeler case, supra, are reinforced by the construction of the legislative department as to the jurisdiction of the district courts. That branch of the government evidently construed the jurisdiction of these tribunals to be limited to civil actions in matters purely .private, because the first section of our Civil Code provides that there shall be but one form of civil action for the enforcement or protection of private rights and the redress or prevention of private wrongs. It is true that, in actions which only involve private rights, writs and processes are employed which are designated by name the same as those which this court is authorized to issue; but they are not prerogative writs of the common law, and are intended, as the code designates, to be employed in adjusting controversies between private parties, in tribunals having original jurisdiction thereof.
From a perusal of the opinion in Attorney General v. Railroad Companies, we learn, at page 521 of 35 Wis., that, by constitutional provision of the state of Wisconsin, the circuit courts, which correspond to the district courts of our state, are empowered to
It is important to bear in mind that, by the constitution of North Dakota, the district courts are empowered to issue writs bearing the same name as those authorized to be issued by the supreme court. Notwithstanding this fact, the supreme court, in Duluth Elevator Co. v. White, supra, held that the supreme and district courts did not have concurrent jurisdiction of these writs. On this point, the court said: “The constitution makers did not intend to give concurrent jurisdiction to the two courts with respect to the writs in question; but, on the contrary, it was the intention to require all suitors to apply to the district courts when these writs, or either of them, is sought as a means of enforcing strictly private rights or the redress of private wrongs. On the other hand, the cases already decided by this court clearly lay down the rule (except where the writs are sought for in aid of the appellate jurisdiction of this court, or in the exercise of its supervisory control over inferior courts) that the writs in question will issue only as prerogative writs.”
We deem it important, also, to call attention to the fact that, at' the time our constitution was adopted (1876), the language employed in conferring original jurisdiction upon this court was iden
The next question to consider is the character of the proceedings in which these writs may be employed. Generally speaking, they were issued under the common law by the court of king’s bench, where the laws did not afford a sufficient or specific remedy. Speaking of that court, Blackstone says (#42): “It protects the liberty of the subject by speedy and summary interposition.”
In State v. Archibald, supra, it Was held, quot: ing from the syllabus: -“This court has original jurisdiction in cases in which the writs named in the constitution may be employed to initiate such jurisdiction, but that jurisdiction is limited to eases involving the sovereignty of the state, its prerogatives or franchises, or the liberty of the citizens. ’ ’
In the case of Duluth Elevator Co. v. White, supra, the question of the character of the cases in which the original writs authorized by the constitution to issue from the supreme court Would be employed was under consideration, and the court held that they would not issue, except in cases publici juris affecting the sovereignty of the state, its "franchises and prerogatives, or the liberties of its people.
From this review of the authorities it appears that the writs mentioned in the constitution, which this court is authorized to issue in the first instance, are the high prerogative writs of the common law; that this court alone is authorized to issue them, because it is the highest judicial tribunal in the state,
Whether or not an election which did not affect the entire state could be supervised by this' court, as in the Tool case, it is not necessary to determine, because no court can entertain an action for this purpose which does not possess the authority to issue prerogative writs; and this, we have seen, the district courts do not have. We think it is clear from the authorities that the power which the district court has attempted to exercise is beyond its jurisdiction.
But, it is contended on behalf of í¿e respondent that the relators in the action instituted in the district court had property interests to protect, in that franchises were to be voted upon. For this reason, it is asserted that the action can be maintained. The power of the district court .cannot extend to these
There axe other reasons, some of which will be briefly noticed, why, in our opinion, the action of the district court*was clearly without authority. "When necessary to state, it has always been held by this court that the original jurisdiction conferred upon it by the constitution is not dependent upon, or governed by, either the statutes or code. The district courts are governed by the code, in so far as it relates to civil actions. In the prosecution and determination of civil cases, it must' follow these provisions. If it be conceded, for the sake of the argument, that it had any authority to entertain the proceeding under consideration, it appears that it has violated many of the plain provisions of the code. The orders made to which we have referred were mandatory, and without notice to the parties affected thereby. This the code prohibits. It is also- fitting that causes intended to protect public rights should be inaugurated before the appropriate tribunal by either the district attorney or attorney general, as the case may be. While it is not absolutely necessary that either-of these officials should consent to the bringing of such an action, practice requires that it at least appear to the court in which such action is instituted that one or the other of these officials refused to act before permitting it to be commenced by a private individual. No such showing was made in the petition filed in the district court.
So far as- advised, it does not appear that the election officials in any manner violated the order of the district court by knowingly permitting illegal votes to be cast, or by false counts, or by committing frauds of any character. If an order was necessary to prevent election officials from committing frauds,
We mention these matters, not because they can be considered in determining the jurisdiction of the district court, but to show that temporarily restrain•ing that tribunal, and finally prohibiting’ it from further proceeding- in the action under consideration, has not in the slightest degree interfered with, and will not interfere with, those who purpose, in appropriate proceedings, to investigate and determine the honest result of the election upon the franchises.
. The petition for the writ of prohibition is granted.
Decision en banc.
Writ granted.
Dissenting Opinion
dissenting orally:
Mr. Justice Gunter and I dissent from the orders granting supersedeases in the cases against the district attorney, the sheriff, and the coroner, not because it is our opinion that the testimony taken proved that these officers were guilty of fraudulent practices in connection with the election, but because we are of opinion that the cases come within the doctrine announced in The People v. District Court, 29 Colo. 5, where the right of the district judge to appoint a special officer to- advise the grand jury whenever he has reason to believe, from information which he considers reliable, that crimes have been committed and that the officer’s conduct in connection therewith is such that it should be investigated, is expressly affirmed.
The opinion in the prohibition case against Judge Johnson was not submitted to Mr. Justice Gunter and to me until Friday last. It has been modified since. We have not, therefore, had time to prepare an extended dissent. We dissent from the judgment because- we regard the issuance of the writ in this instance as a misuse of the power. This court has held, many times, that it will not take original jurisdiction except where questions publici juris are involved, and where extraordinary and peremptory reasons exist.
We do not regard the questions involved as publici juris, and it is certain that the extraordinary and peremptory reason for issuing** the writ is not disclosed by the record. Although the Tool ease is without precedent, and is not based upon any recognized rule of equity jurisprudence, it is, nevertheless, until reversed, the law of this state. That case de