10 Mont. 370 | Mont. | 1891
This is an application to this- court upon the part of Henry A. Doot and Maria Cummings for a peremptory writ of mandate to compel the judge of the District Court of the Second Judicial District of the State, in and for the county
It will not be profitable to set forth fully the statements of the affidavits and returns, but the material facts appearing therein should be presented. Andrew J. Davis died March 11, 1890, in Butte, county of Silver Bow, aforesaid, and left an estate exceeding in value the sum of eight million dollars. Said Boot and Cummings and others are heirs at law of the deceased. John A. Davis, a brother of the deceased, produced to said District Court, July 24, 1890, a paper purporting to be the will of the deceased, and to have been executed in the State of Iowa, July 22, 1866, and by which the said estate, with the exception of some small annuities, was bequeathed to the said Davis. Said Boot and Cummings within the proper time appeared and contested the will in the manner required by law. The issues of fact which were thereby raised were settled October 23, 1890, and the court set, December 20, 1890, the same for hearing February 2, 1891. The contestants filed, January 29, 1891, in the court their demand in writing to have these issues tried by jury. The panel of trial jurors was obtained and drawn in pursuance of a certain order of the court, made December 20, 1890, which is as follows: —
“In the matter of the trial jury. This day, it appearing to
“John J. McHatton, Judge.”
The population of said county of Silver Bow exceeds ten thousand. The contestants demanded, January 31,1891, of the court the appointment of jury commissioners, and that a jury should be drawn in accordance with the provisions of the act relating to the drawing of jurors, approved March 14, 1889. They also move to quash and set aside the venire, and discharge the said panel of petit jurors, but the court refused to appoint said commissioners and overruled the motion.
The District Court for the county of Silver Bow, under the territorial government, adjourned sine die November 12, 1889, and no order for the appointment of a jury commission was made during the term, which then expired. Since the organization of the District Court within the State, no petit jury has been impaneled through the action of any jury commission.
The respondent says in his returns that “ the District Court of the State for the Second Judicial District has no terms or regular stated provisions of time for its sitting, but is always open, and there are continual sessions as in the Constitution provided, and there has been no time at which jury .commissioners could be appointed by this defendant; and the first section of said Act of March 14, 1889, has by the provisions of the Constitution been superseded and annulled, so far as applicable to said District Court.” The respondent also alleges that he has followed the requirements of the fifteenth section of said act, which is in these words: “If during a term of the District Court a lawful petit jury is not present, and one is wanted, it
The first section oí the act which is mentioned in the return is as follows: “It shall be the duty of the judge of the District Court, at each regular term that shall be holden in any county, to appoint three persons of honor and respectability, not parties litigant to any matter pending in such court, and who shall have resided in such county at least two years next preceding, and shall also possess the qualification required by law for jurors, to constitute jointly, along with the judge of probate of said county and the county clerk, a commission to select a grand and petit jury, whose duty it shall be to serve at the next regular term of said court in each county.” (Stats. 16th Sess. 166.) The manner in which this commission shall discharge its duty is carefully defined, and the fifth section of the act should be noticed in this inquiry. “The jury commissioners for such county shall then proceed to draw a petit jury for the next ensuing term of court in manner following: In any county where the population exceeds ten thousand, such commissioners shall select the names of three hundred persons lawfully qualified to serve as jurors from the county assessor’s books of the county, .... and the names of the persons so selected, after
It must be admitted that the statute regarding the appointment of a jury commission was enforced throughout the Territory, and that there is no difficulty in carrying into effect its provisions in the judicial district of the State which comprise more than one county. But the respondent maintains that there exists in his district an insurmountable obstacle to its execution, which has been erected by this section of the Constitution; “The District Court in each county which is a judicial district by itself shall always be open for the transaction of business except on legal holidays and non-judicial days. In each district where two or more counties are united, until otherwise provided by law, the judges of such district shall fix the term of court, provided that there shall be at least four terms a year held in each county.” (Const, art. viii. § 17.) It is claimed by the respondent that the regular terms or stated times of holding the District Court in the county of Silver Bow have been thereby abolished, and that the act concerning the jury commissioners has lost its vitality, or been rendered impracticable.
What, then, is a “term of court?” The importance of a precise definition of this legal phrase is obvious when the language of the returns is remembered, and also the Constitution and laws, supra. It is often employed in the Compiled Statutes, and a reference thereto may afford some light upon our path. The Code of Civil Procedure provides for the relief in certain cases of a party who “has been unable to apply .... during the term at which such judgment, order, or proceeding complained of was taken,” and whose application has been “made within a reasonable time, not exceeding five months after the adjournment of the term.” (Code Civ. Proc. § 116.) “ The clerk shall enter causes upon the calendar of the court according to the date of the issue. Causes once placed upon the calendar,
The Criminal Practice Act requires a magistrate in some cases to commit a defendant to jail, “to be held to appear at the following term of the District Court.” (Crim. Prac. Act, § 96.) He shall take a recognizance from each material witness, “conditioned to pay the sum of five hundred dollars should he fail to appear and testify, as required, at the term of court at which the defendant is required to appear.” (Crim. Prac. Act, § 99.) Provision is made for witnesses who may be taken into custody, “awaiting a term of court.” (Crim. Prac. Act, § 102.) “All examinations and recognizances taken by any magistrate as provided herein shall be certified and returned by him to the clerk of the court .... on or before the first day of the next term thereof.” (Crim. Prac. Act, §105.)
If the position of the respondent is correct, and there can be no terms of the District Court in the judicial districts which include respectively one county, a remarkable conclusion must be declared. Juries would be impaneled in one forum by a mode which would be different from that pursued in other courts of equal jurisdiction, and the wholesome part of the act
In Horton v. Miller, 38 Pa. St. 270, Mr. Justice Thompson in the opinion says: “Terms of court ‘are those times or seasons of the year which are set apart for the dispatch of business in the Superior Courts of common law.’ (Tidd’s Prac. 105.) Sir Henry Spelman traces their origin to the canonical constitutions of the church, which the four ordinary feasts of Hilary, Easter, Trinity, and Michaelmas, being the names of the four terms of the courts of common law in England, very clearly indicate to be their true origin.....But still terms definite and fixed are prescribed, and are absolutely necessary to the successful administration of the judicial duty, so far as the public is concerned; and hence they are with us fixed by positive law.” In Bronson v. Schulten, 104 U. S. 410, Mr. Justice Miller for the court says: “In this country all courts have terms and vacations. The time of the commencement of every term, if there be half a dozen a year, is fixed by statute, and the end of it by the final adjournment of the court for the term. This is the case with regard to all the courts of the United States, and if there be exceptions in the State courts, they are unimportant.”
There is no act which prescribes the time when the terms of the District Court shall begin or end, and by virtue of the acts of Congress, the judges of the Supreme Court of the Territory of Montana were clothed with this power. (U. S. Rev. Stats. § 1914.) The Constitution has expressly empowered the judges of certain districts to fix the terms of the courts, subject to a limitation as to the number which must be held in every year, and also “until otherwise provided by law.” A mandatory rule of interpretation is laid down in this explicit section: “All laws relating to courts shall be general and of uniform operation throughout the State; and the organization, jurisdiction, powers, proceedings, and practice of all courts of the same class or grade, so far as regulated by law, shall be uniform.” (Const, art. viii. § 26.) Therefore there must be one statute for
The Constitution has by general and special expressions continued in perfect vigor every provision of the law creating a jury commission. “All laws enacted by the legislative assembly of the Territory of Montana, and in force at the- time the State shall be admitted into the Union, and not inconsistent with this Constitution, or the Constitution or laws of the United States of America, shall be and remain in full force as the laws of the State until altered or repealed, or until they expire by their own limitation. .... and provided further, that the duties which now by law devolve upon probate judges as jury commissioners .... shall, until otherwise provided by law, devolve upon and be performed by the clerks of District Courts in their respective counties.” (Sec. xx. Schedule, § 1.) The distinct office of the probate judge was abolished when the government of the State was inspired with political life, and the Constitution has wisely ordained that the integrity of the jury commission shall be preserved by designating the person to fill the vacancy which had been caused by the change.
We have examined the rul of practice which have been adopted by the respondent, and find that he has not fixed the terms of his court according to the views which have been upheld by us. This is an omission which should be promptly remedied. The relators have saved their exception to the action of the respondent with reference to the impaneling of the jury in his court. Under the statutes governing the issuance of the writs of mandamus and prohibition, and the authorities, we think that the relators are entitled to the relief which they have sought in this court.
We cannot conclude these observations without commending the conduct of the respondent, who seems to have been led into error by a misapprehension of the language of the seventeenth section, supra, of the Constitution, and who has in a spirit of
Wherefore it is ordered and adjudged that a peremptory writ of mandate and a peremptory writ of prohibition be issued in the form prescribed by law, according to the prayer of the affidavits respectively of the relators.
