24 Mont. 433 | Mont. | 1900
Lead Opinion
after stating the case, delivered the opinion of the Court.
Although this Court in the exercise, of its original jurisdiction under Article VIII, Section 3 of the Constitution, has frequently granted writs of injunction to restrain ministerial officers from violation of their duties in connection with the administration of the election laws (State ex rel. Woody v. Rotwit, 18 Mont. 502; State ex rel. Russel et al. v. Tooker, id. 540; State ex rel. Metcalf v. Johnson, id. 548; State ex rel. McLaughlin v. Bailey, id. 554; State ex rel. Gillis v. Johnson, id. 356; State ex rel. Matts v. Reek, id. 557; State ex rel. Matts v. Fisher, id. 560), the first q.uestion presented by the demurrer has never been decided. The power of this Court to issue any original writ was challenged in In re McKnight, 11 Mont. 126, but it was there held that the provision in the section cited: “Said court shall have power in its discretion to issue and to hear and determine writs of habeas corpus, mandamus, quo warranto, certiorari, prohibition and injunction, and such other original and remedial writs as may be necessary or proper to the complete exercise of its appellate jurisdiction, ” is a clear grant of original jurisdiction. The purposes for which the grant was made are not discussed, Mr. Justice Harwood contenting himself by saying: “The writs named are defined in law; and their use in the administration of justice is fixed by long usage and well settled principles.” This is well said of all the other writs, except injunction, for they are all common law writs of weli defined and well known functions. It is also true as applied to the writ of injunction used, as it ordinarily is, as a judicial writ, by
Thus, along with the common law prerogative writs of well defined uses, we have a new prerogative, or quasi prerogative writ to be applied to uses for which we find it most appropriate; and the result of that case is, that this writ is the equity arm of the Court’s original jurisdiction, and that it with the other writs granted, fully arm and equip the Court as a court of first resort on all judicial questions affecting the sovereignty of the state, its franchises or prerogatives, or the liberties of the people. The writ is made correlative with that of 'mandamus, and thus it may be resorted to to restrain excess, just as the writ of mandamus may be used in the same class of cases to compel action and supply defects. The language of the Wisconsin court is: ‘‘And it is very safe to assume that the Constitution gives injunction to restrain excess, in the same class of cases as it gives mandamus to supply defect; the.use of the one writ or the other in each case turning solely on the accident of overaction or shortcoming of the defendant. And it may be that where defect and excess meet in a single case, the court might meet both, in its discretion, by one of the writs, Avithout being driven to send out both, tied together with red tape, for a single purpose;” and these views are adverted to" and approved in subsequent cases by the
The execution of the election laws, defendant insists, is a pure exercise of political power, and it therefore does not fall within the jurisdiction of this Court ,to interfere with a public officer in the discharge of his duties under them, in other words, as no property rights are involved which may be injured by a wrong on his part, this Court has no power to restrain him by means of the writ of injunction, but the relator must be aided, if at all, by means of the writ of mandamus. The same question was presented and urged in the case of State ex rel. Attorney General v. Cunningham, 81 Wis. 504, 17 L. R. A. 561. In that case an application was made upon the relation' of Adams county, for an injunction to restrain the secretary of state from giving notice to proceed to the election of members of the legislative assembly under the apportionment act of 1891, on the ground that the act was unconstitutional and void. The relief was granted, the court holding that the controversy presented involved-the preservation of a constitutional legislature as well as of the rights of the people of the state to equal representation in the "legislative assembly, and as such fell within the original prerogative jurisdiction of the court. Mr. Justice Finney, in a concurring opinion, says in this connection: “It may well be conceded that courts of equity would not, by reason of their original jurisdiction, have authority to interfere by injunction in a case such as this; but it is to be borne in mind that the writ of injunction under our constitution is put to prerogative uses, of a strictly judicial nature, as a remedy of a preventive character in case of threatened public wrong to the sovereignty of the state, and affecting its prerogatives and franchises and the liberties of the people; their rights being-protected in this court by information in the name of the
It is claimed in this case that mandamus is a proper remedy and, therefore that injunction is not. With this contention we do not agree. There is not here presented a case in which there is a default in the performance of duties required by law, but one in which the defendant is proceeding to do what the law does not permit. To restrain this excess, as prohibition may not go to a ministerial officer (State ex rel. Scharnikow v. Hogan, ante p. 379, 62 Pac. Rep. 493), injunction is best suited.
While, in settling such controversies, the Court protects the personal rights of the candidates, it also performs the much more important function of restraining a public officer to the bounds of duty and preserves the ballot from unlawful interference by sinister influences the object of which is to injuriously affect the result to accomplish selfish ends. So it is that, conceding the power of the legislature to lay down a rule limiting the classes of cases in which this Court may issue the writ, this case falls clearly within the class of those in which the public is interested or the rights of the public are involved, and the objection that it is one in which the Court has no. jurisdiction is not sustained.
It is proper that the proceeding should be instituted in the name of the state. It is none the less proper that in a case like the present, where public and private rights meet, the proceeding should be instituted upon the relation of an elector who seeks redress for himself and the great body of electors to which he belongs. It is not for the attorney general to
The demurrer is therefore overruled. The defendant hav
Writ Granted.
Concurrence Opinion
I concur.
Dissenting Opinion
I dissent. In my opinion mandamus., not injunction, is the remedy to compel the county clerk to certify the proper list of nominations. His ministerial duty, the performance of which the law requires, is to include in the list the names of those candidates who have been nominated conformable to the statute in that behalf enacted, and the names of no others. Injunction will not lie when the remedy at law is plain, speedy and adequate. In the case at bar injunction is used to accomplish the precise result that mandamus would effect. The extraordinary jurisdiction of the chancery arm of the Court should never be exercised except in those cases where the remedy which the legal arm of the Court can give is inadequate. I am of the opinion also that Section 3 of Article YIII of the Constitution does not grant to this Court authority to issue the writ of injunction as a jurisdictional writ. I think the writ of injunction mentioned in the section is a writ which may be issued only in a pending suit. It is a remedy in an action. At the time the Constitution was adopted, there was no such writ of injunction as the one issued in the present proceeding; nor was such a writ known to courts of chancery.
While I concur in the disposition of the case upon the merits, I dissent from the holding that there is a jurisdictional writ of injunction provided for by the Constitution, and from the holding that mandamus is not the remedy.