Smith v. Odell
1 Pin. 449
Wis.
1844
Check Treatment
Miller, J.

The defendant in error, Damd J. Odell, brought this suit before a justice of the peace of Iowa county, against these plaintiffs in error, Michael Oassin and Eleaser Smith; who, feeling themselves aggrieved by the judgment of the justice, applied to a supreme court commissioner of said county for the allowance of a writ of certiorari to said justice, to remove the judgment and all the proceedings in the case, to the district court of said county for revision and correction. The commissioner allowed the certiorari, which was issued in common form. On the return of said writ to the district court, the said Damd J. Odell, the defendant in error, moved the court to dismiss the same and all proceedings thereon, for the reason, “that it was allowed, and the bond approved, by a supreme court commissioner, who is an officer possessing no authority by the law organizing the Territory, to exercise such judicial functions.’ ’ Which said motion was sustained by the court, and the writ of certiorari dismissed ; which is the error assigned in this court.

The question presented is, has the legislative assembly of this Territory power, under the organic law of the Territory, to create such an officer as supreme court commissioner ; and to confer upon him the power to allow a writ of certiorari to a justice of the peace %

*451By the ninth section of the “act establishing the territorial government of Wisconsin,” the judicial power of the Territory is vested in a supreme court, district courts, probate courts, and in justices of the peace. These are the courts for the disposition of all the judicial business of the Territory — and it is not competent for the legislative assembly to create any more. The creation of any additional judicial tribunal, is in the congress of the United States. The legislative assembly is authorized to limit, by law, the jurisdiction of the several courts above mentioned, both appellate and original—but no further.

By the sixth section of the organic law, the legislative power of the Territory is extended to all rightful subjects of legislation. This extends to the legislative assembly, the power to direct the manner in which all writs may be obtained. It has the power to prescribe all rules,requirements, forms and ceremonies in obtaining, issuing and serving writs, and it can, by law, declare what officers shall or may administer oaths.

In the seventh section of the organic law, it is. provided, “that the governor shall nominate, and by and with the advice and consent of the legislative council, shall appoint all judicial officers, justices of the peace, sheriffs, and all militia officers except those of the staff, and all civil officers not therein provided for.” By this last clause it would seem, that some other officers might be created in addition to those enumerated in that law. In the exercise of the power granted to the legislative assembly, acts have been passed, and are now in force, authorizing, the appointment of supreme court commissioners and conferring upon them extensive powers. Whether a supreme court commissioner is such a civil officer as must necessarily be appointed by the governor, with the advice and consent of the council, it is not necessary now to determine. Nor need we determine, whether he is a judicial officer clothed with judicial powers. There is no doubt, but that the legislative assembly can by law, create such a commissioner, and confer upon him the power to *452perform such ministerial duties, as may be deemed necessary in the administration of the laws. He may be nominally classed among the judicial officers, but at the same time possess but mere ministerial powers. He may be clothed with judicial authority, which he cannot legally exercise, but this should not prevent him from discharging such duties as are ministerial.

The statutes of Wisconsin relating to the powers and duties of this commissioner, are copied from those of the State of New York; but the constitution of that State does not so specifically and positively define and limit the judicial power, as does the organic law of this Territory. Probably this is one cause of the scarcity of judicial decisions in that State, upon the powers and duties of the supreme court commissioner. The statute of that State confers upon the commissioner power to allow a writ of certiorari to a justice of the peace; but the allowance of a common law certiorari is not thus conferred, but is confined to the court which issues the writ. Caledonia Company v. The Trustees of Hoosic Falls, 7 Wend. 508-665; Bredner v. The Superintendent of the Poor of the county of Orange, 9 id. 433. But an adjudicated case cannot be found in the books of reports of that State, after diligent search, where the power of a commissioner to allow a writ of certiorari to a justice of the peace has been questioned.

Cause must be shown for a writ of certiorari in all cases, where it is to review the proceeding of an inferior tribunal. Munro v. Baker, 6 Cowen, 396; Bogart v. The Mayor, etc., of New York, 7 id. 158. Such is the requisite of our statute. In the second section of the act, on page 340 of the Revised Statutes, it is provided, that the party applying for such certiorari, his agent or attorney, shall present to a judge of the supreme court, or supreme court commissioner an affidavit, stating that in his belief, there is reasonable cause for granting such certiorari for error in such judgment (setting forth the ground of error alleged), and that the application is made in good faith and not for *453the purpose of delay, and if such judge or commissioner shall be satisfied that any error affecting the merits of the controversy has been committed by the justice, or jury, in the proceedings, verdict, or judgment, he shall allow a writ of certiorari, by indorsing on the affidavit his allowance thereof.” It is contended, that as the commissioner is to examine the affidavit and satisfy himself therefrom that error affecting the merits of the controversy has been committed, it is a.judicial investigation by a 'tribunal not authorized or contemplated by the organic law, and therefore void. In every act the commissioner is called upon to perform, some examination or investigation is necessary. He can make an order for security for costs (Moore v. Merritt, 9 Wend. 482; Stat. of Wis. 403), which requires an examination of the affidavit or facts required by the statutes. He can tax a bill of costs, which a party is adjudged to pay by a court of competent jurisdiction, which requires both an investigation of facts and the administering of oaths. The allowance of a writ of habeas corpus requires a previous examination of the petition , and all accompanying documents required by the statute, but that is a mere ministerial duty, when performed by a judge in vacation. In speaking of the penalty to be imposed upon judges for not allowing a writ of habeas corpus, Chief Justice Kent, in the case of Yates v. Lansing, 5 Johns. 296, draws this distinction between judicial and ministerial acts. “ The penalty to which the chancellor and judges are liable is mentioned in the fourth section of the act, and that is given against them by name, and only for their refusal, in vacation time, to allow a writ of habeas corpus when duly applied for. The chancellor and judges may refuse such a writ at their discretion, if applied for in term time, and the penalty will not attach. It is only when they refuse in a mere ministerial capacity to allow a writ that they are made responsible. The allowance of a writ in vacation is not a judicial act. It is merely analogous to the case stated in Green v. The *454Hundred of B.,1 Leon, 323, where it was held that an action on the case lay against a justice of the peace for refusing to take the oath of the party robbed, because in such case he did not act as a judge, but as a particular minister appointed by the statute of Elizabeth to take examinations. The habeas corpus act does not then, in any of its provisions, violate or even touch the principle that no suit lies for a judicial act. Though the judge is bound under a penalty to allow the writ, yet when the prisoner is brought before him, he is to discharge, bail or rémand him, as he shall be advised, and no action or penalty is given for what he shall then do or refuse to do.” He then acts judicially.

The laws directing the manner in which writs of certiorari or attachment may be obtained require the officer to be satisfied from an examination, or inspection, of the affidavit presented; but the allowance of the writ upon such examination or inspection is not an adjudication; it is merely the exercise of a judicial discretion. The officer does nothing thereby to conclude the rights of the parties. He merely inquires whether there is sufficient contained in the affidavit to entitle the party to his writ; which when served and returned, becomes the subject of judicial examination by the court, and must be quashed or abated, if allowed improvidently or issued illegally. It is a common practice for the court to quash writs that have been allowed by the judges in vacation—which is a judicial correction of a ministerial act. The court does not dispose of a case brought by certiorari or attachment upon the affidavit on which the writ was allowed, but upon the return of the justice in the one case and the merits of the cause in the other. The allowance of writs partakes more of an inquiry into the forms and ceremonies of the law than an investigation of any thing connected with the rights or interests of the parties, or the justice of the cause.

The act of congress organizing this Territory is in the nature of a constitution of a State. -It is supreme, and *455the legislative assembly cannot pass an act in opposition to, or in violation of it. The courts cannot be required to enforce such an act. It should be treated as a nullity. But before the courts would be justified in such a course, -it should clearly appear that such repugnance, violation or opposition did exist. Upon the same principle, it is well settled in the courts of the United States and of the different States of this Union, that the constitution is paramount to the power of a legislature, and every act of a legislature repugnant to it is void. The judiciary is a co-ordinate branch of the government, and has a right to declare an act of the legislature void, when repugnant to the constitution, but it must be a very clear and unequivocal case to induce a court to pronounce an act of the legislature unconstitutional. When a judge is convinced that an act is unconstitutional, it is his duty to set it aside, but he must examine it with every legal intendment and presumption in favor of its validity. He is not to resort to a forced, rigid or doubtful construction of an act for the purpose of determining its unconstitutionality. Before the court will declare an act of the legislature unconstitutional, a case should be presented in which there is no rational doubt. Vanhorn's Lessee v. Dorrance, 2 Dallas, 304; Cooper v. Telfair, 4 id. 14; Osburn v. The Bank of the U S., 9 Wheat. 738; Trustees of Dartmouth College v. Woodward, 4 id. 518; Ex parte McCollom, 1 Cowen, 550; Stoddard v. Smith, 5 Binney, 355; Eaken v. Raub, 12 Serg. and Rawle, 330. After a full and fair examination, according to these principles, of the statutes relating to supreme court commissioners, and conferring upon them the powers to dis- • charge the ministerial duties above referred to, we cannot pronounce them to be repugnant to the organic law and void. We should not feel ourselves justified in deciding that !be legislative assembly possessed no power to provide for the appointment of supreme court commissioners and confer upon them the authority to allow a writ of certiorari to a justice of the peace.

*456Por these reasons, the judgment of the district court of Iowa county, quashing the certiorari in this case, must he reversed, with an order to said court to restore the cause to the docket of said court.