State ex rel. Whiteside v. First Judicial District Court, 24 Mont. 539

State ex rel. Whiteside v. First Judicial District Court

24 Mont. 539 | Mont. | 1900

MR. CHIEF JUSTICE BRANTLY,

after stating the case, delivered the opinion of the Court.

1. As was declared in State ex rel. King et al. v. District Court of Second Judicial Dist. 24 Mont. 494, 62 Pac. 820, under *553a proper construction of Section 1941 of the Code of Civil Procedure there are three indispensable requisites to the granting of the writ: (1) Excess of jurisdiction in the court making the order complained of; (2) absence of the right of appeal; and (3) lack of any plain, speedy,- and ádequate remedy other than certiorari. Under the Constitution (Article VIII, Section 11) and the provisions of the Penal Code, (Sections 2740, 2742,) the witness Ramsey, had the right to apply to the district court of Lewis and Clarke county, or to either of its judges, to have the cause of his imprisonment inquired into; and it was within the power of that court or its judge — it was likewise its or his duty — upon proper application to undertake the inquiry, and to direct the prisoner to be released, or remanded, in conformity with the conclusion reached upon his rights as they were made to appear. Jurisdiction means the power to hear and determine the particular case presented for consideration, as well as to make such orders and to render such a j udgment therein as the law authorizes in the class of cases to which it belongs (State ex rel. King et al. v. District Court of Second Judicial Dist. supra)] in brief, it is the power to hear and determine the questions coram judice in the particular case. It therefore follows that the conclusion reached and the judgment rendered in the particular case may be either right or wrong, and still jurisdiction be in no wise exceeded (State ex rel. Buck v. Board of Com'rs of Ravalli County, 21 Mont. 469, 54 Pac. 939); otherwise, the making of an erroneous order or judgment in any case would be an excess of jurisdiction in the sense that it would be the determination of a question coram non judice. The district court was called upon to decide upon the legality of the imprisonment of Ramsey; having issued the writ, and caused the complainant to be produced before it, it was authorized and required to pass upon the question thus presented, and it is immaterial, upon this inquiry,' whether it decided the question right or wrong. The order having been made that the complainant be released, this was an adjudication that the imprisonment was unlawful, and this adjudication, though not *554binding as a precedent upon any other court, was final and conclusive for all pruposes upon this application (Grady v. Superior Court, 64 Cal. 155, 30 Pac. 615; Ex parte Jilz, 64 Mo. 205; Yates v. The People, 6 Johns, 337); and it makes no difference whether the order was based upon the ground that the notary had no power to commit the witness, or whether, upon the merits of the case, no contempt was committed. Therefore, while no appeal might be taken from the order (State ex rel. Jackson, v. Kennie, 24 Mont. 45, 60 Pac. 589), and there was no other plain, speedy, and adequate remedy, still the order was not in excess of jurisdiction in the sense that it was a decision of a matter c'oram non judice. Counsel for plaintiff argues that this conclusion should not be reached, for the reason that it might lead to deplorable results. He instances the judge of the Third district, in which our state prison is situated, and points out how this judge might, under a misapprehension of the law, release many of the convicted criminals confined therein, thus'setting at naught the solemn adjudications of guilt by the other district courts throughout the state and by this court. As a case in point, he cites State ex rel. Nolan v. Brantly, 20 Mont. 173, 50 Pac. 410, in which he says a gross wrong would have been done but for the timely interposition of this court by means of certiorari to annul the order of release made by the district court. We think, however, that the fears of counsel are more imaginary than real. As we shall presently see, this court has ample power, under its constitutional grant of supervisory control over the district courts, to prevent any such disaster. Besides, we must presume that the district courts will do their duty, and that the cases where gross and palpable. wrong is done or attempted are and will be rare exceptions, and not the rule. We may not, therefore, lay down a rule which implies that these courts are not sensible of their important duties, and are not disposed to administer the law in accordance with the principles of reason and justice. Furthermore, a different conclusion would deprive, these courts in a large measure of the power granted to them under the constitution, and would lay down *555the rule that, in habeas corpus proceedings at least, they must decide right always or be held to have exceeded their jurisdiction. In our opinion, the case of State ex rel. Nolan v. Brantly, was decided upon a misconception of the functions of the writ of certiorari. The decision is based upon the theory that the district court exceeded its jurisdiction, because, it being made to appear that the prisoner, Day, was held by virtue of process issued upon a final judgment of a court of competent criminal jurisdiction, that court presumed to decide the contrary. This was tantamount to a declaration that the latter court should not have entertained the application of the prisoner at all. It is proper to say, however, that no question was made by counsel at the hearing in this Court as to the propriety of the proceeding, the court assuming that, if the district court was in the wrong, it exceeded its jurisdiction. Under the weight of authority the case was correctly decided upon the question considered, and, had the annulment of the order of release been accomplished by an exercise of the constitutional power of supervisory control, such action might have been justified under the rule laid down in some of the cases cited by counsel on the hearing of this case. (Ex parte Good, 19 Ark. 410; States. Herndon, 107 N. C. 934, 12 S. E. 268; Ex parte Croom, 19 Ala. 561; In re Knox, 64 Ala. 463; In re Booth, 3 Wis. 1; Field v. Putnam, 22 Ga. 93.) But these cases were decided under constitutional and statutory provisions materially different from ours, and are not deemed of binding authority. The writ, used as it was in State ex rel. Nolan v. Brantly, was wrested from its legitimate functions, and made ■ to accomplish an object for which it is inappropriate, for the case is rested expressly upon the ground that the district court bad no jurisdiction to order the prisoner released.

2. What has been said in the foregoing paragraph disposes of this case, and we would rest here were it not for the fact that counsel for relator so earnestly insists that, though we should reach the conclusion stated, we should nevertheless, in *556this case, annul the order of the district court by the exercise of our supervisory power, on the ground that it was made in violation of law. The defendant interposes the objection that the clause of the Constitution conferring upon this Court a supervisory control over inferior courts is not self-executing; that this power must, by the express provision of the Constitution, be exercised “under such regulations and limitations as may be prescribed by law,” and not otherwise; and that, as the legislature has prescribed certain regulations and limitations under which the writ of certiorari may be used to inquire into questions of jurisdiction only, we may not pervert the writ from this use to review and correct mere errors appearing upon the record certified to this court. The contention is also made that a notary has no power to commit a witness for contempt.

This brings to our attention the power and jurisdiction of this Court as declared in Sections 2 and 3 of Article VIII of the Constitution, which follow:

“Sec. 2. The Supreme Court, except as otherwise provided in this Constitution, shall have appellate jurisdiction only, which shall be co-extensive with the state, and shall have a general supervisory control over all inferior courts, under such regulations and limitations as may be prescribed by law.

“Sec. 3. The appellate jurisdiction of the Supreme Court shall extend to all cases at law and in equity, subject, however, to such limitations and regulations as may be prescribed by law. Said court shall have power in its discretion to issue and to hear and determine writs of habeas corpus, mamdanvus, quo warrcmto, 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. When a jury is required in the Supreme Court to determine an issue of fact, said court shall have power to summon such jury in such manner as may be provided by law. Each of the justices of the Supreme Court shall have power to issue writs of habeas corpus to any part of the state upon petition by or on behalf *557of any person held in actual custody, and may make such writs returnable before himself, or the Supreme Court, or before any district court of the state, or any judge thereof; and such writs may be heard and determined by the justice, or court, or judge, before whom they are made returnable. Each of the justices of the Supreme Court may also issue and hear and determine writs of certiorari in proceedings for contempt in the district court, and such other writs as he may be authorized by law to issue. ’

Upon a proper construction of these sections depends the disposition of counsel’s contention. As we understand them, they confer upon this Court: (1) Appellate jurisdiction, which is coextensive with the state; (2) a general supervisory control over all inferior courts; (3) discretionary power to issue, hear and determine the various writs enumerated; and (4) the power to issue, hear and determine such other original and remedial writs as may be necessary and proper to a complete exercise of the appellate jurisdiction. The fourth power enumerated seems to be entirely unnecessary, and appears to have been added out of abundance of caution, so that this Court might not be embarrassed by any question as to a want of means to aid in the complete exercise of its appellate jurisdiction. To this provision we shall refer later.

We shall most conveniently consider first-briefly the nature and purposes of these powers. Though there has been no decision in this state defining the limits to which the review on appeal shall go, the practice and procedure provided by law and the character of relief uniformly granted by this Court thereunder since its creation have established the proposition that this Court has no power to try questions of fact, and render thereon such judgment as should have been rendered by the trial court. This was declared to be the rule by the Territorial Supreme Court to which, under Section 9 of the Organic Act, ‘ ‘writs of error, bills of exceptions, and appeals, ” were allowed under such regulations as should be prescribed by law. (Barkley v. Tieleke, 2 Mont. 435; Chumasero v. Vial, 3 Mont. 376; Ingalls v. Austin, 8 Mont. 333, 20 Pac. *558637). At the time of the adoption of the Constitution in 1889 substantially the same procedure which had been provided by the legislature under the practice act at the time of these decisions was continued in force by that instrument. (Schedule 1). It was re-enacted substantially in the Code of 1895, and the decisions thereunder have been in conformity with the rule declared in the early cases. (Barden v. Montana Club, 10 Mont. 330, 25 Pac. 1042, 11 L. R. A. 593, citing the foregoing cases; Root v. Davis, 10 Mont. 228, 25 Pac. 105; Merchants’ Nat'l. Bank v. Greenhood, 16 Mont. 395, 41 Pac. 250, 851; Pearson v. Harper, 16 Mont. 143, 40 Pac. 171; State v. Hurst, 23 Mont. 484, 59 Pac. 911). For more than 10 years this Court has proceeded upon the assumption that, while it derives its appellate powers from the Constitution, these powers are in no respect different in extent from those possessed by its predecessor, the Territorial Court, and that they are to be interpreted and applied in the light of the conditions existent at the date of adoption of that instrument,- — in other words, the extent of the power and the character of relief granted has become established and defined by uniform contemporaneous construction. (Lord v. Dunster, 79 Cal. 477, 21 Pac. 865; Styles v. Tyler, 64 Conn. 432, 30 Atl. 165).

The grant of the appellate jurisdiction from its very nature implies also all the instrumentalities necessary to make it effective. ‘ ‘It is an established doctrine that one of the essential attributes of appellate jurisdiction and one of the inherent powers of an appellate court is the right to make use of all the writs known to the common law, and, if necessary, to invent new writs or proceedings in order to suitably exercise the jurisdiction conferred. ’ (Wheeler v. Northern Colorado Irrigation Co., 9 Colo. 248, 11 Pac. 103). We cite to this point also: Attorney General v. Chicago & N. W. Ry. Co., 35 Wis. 425; State ex rel. Moore v. Archibald, 5 N. Dak. 359, 66 N. W. 234; U. S. v. Dubuque Co. Corners, 1 Morris 31.

The phrase, “and shall have a general supervisory control over all inferior courts, ’ contains a clear grant of power. It is also distinct and separate from the appellate jurisdiction. *559This is- made manifest by the language used. This clause and the one conferring appellate jurisdiction are co-ordinate, each being independent of the other, neither limiting or qualifying in any way the meaning of the other, and both being qualified to the same extent by the concluding clause, “under such regulations and limitations as may be prescribed by law.” Any other view would lead to the conclusion either that the second clause was intended as a mere qualification of the first —which the situation of the clauses in the sentence will not permit; or, that the latter clause is a mere nudum verbum— which would be violative of the familiar canon of construction that a statute or constitution must be so construed that every word of it may be made operative, if it is practicable to make it so. (State ex rel. State Publishing Co. v. Hogan., 22 Mont. 384, 56 Pac. 818; Cooley’s Const. Lim. 72; Hyatt v. Allen, 54 Cal. 353; Story, Const. Law, Sec. 451). A similar clause is found in the constitutions of many of the states of the Union, and, we believe, the courts unanimously agree that the various constitutional conventions used the language purposely to confer a power separate and independent of any other power to meet exigencies to which the ordinary appellate powers of the court are not commensurate. (Attorney General v. Blossom, 1 Wis. 317; Attorney General v. Chicago & N. W. Ry. Co., 35 Wis. 425; State ex rel. Nat'l. Bank v. Johnson, 103 Wis. 591, 79 N. W. 1081; Wheeler v. Irrigation Co., 9 Colo. 248, 11 Pac. 103; City of Huron v. Campbell, 3 S. Dak. 311, 53 N. W. 182; Vine v. Jones, 13 S. Dak. 54, 82 N. W. 82; State ex rel. Moore v. Archibald, 5 N. Dak. 359, 66 N. W. 234; State ex rel. Murray v. Lazarus, 36 La. Ann. 578; In re Ingersoll, 50 La. Ann. 748, 23 South. 889; Ex parte Croom, 19 Ala. 561; People ex rel. Green v. Court of Appeals, (Colo. Sup.) 61 Pac. 592; People v. Richmond, 16 Colo. 278, 26 Pac. 929). It is well said of this power in the last case cited: “It is hardly necessary to add that the ‘superintending control’ given by the Constitutional provision now under consideration refers primarily *560to courts, not to parties or cases; its purpose is to keep the courts themselves ‘within bounds,’ and to insure the harmonious working of our judicial system; it was not designed to secure the review of judgments in connection with ordinary appellate jurisdiction; and, in so far as the rights of suitors in particular causes may be affected, the effect is incidental purely. To say that the ‘superintending control’ was intended to include ordinary appellate power is to render the preceding clauses superfluous in so far as they constitute a grant of such power. ”

Nor is this power to be confounded with the other original j urisdiction conferred by the third grant. This clause was examined by this court in In re MacKnight, 11 Mont. 126, 27 Pac. 336. In that case the contention was made that the authorization to issue the six writs enumerated was not intended as a grant of original jurisdiction, but that they should be issued in aid of appellate j urisdiction only. It was there pointed out, however, that the argument of counsel was not only inconsistent with the nature of the writs themselves as original writs, always used for certain well-known and well-defined purposes, but that the writs themselves — some of them at least — are wholly unsuited for the performance of the office to which it was sought to limit them. The argument in the opinion as to the well-defined character of these writs and the purposes for which they have ever been used — that is, as original perogative writs — is conclusive as to the character of the power this court should exercise through them, except as to the writ of injunction. This appears to have been intended for some undefined use different from its appropriate function under the old equity practice. The fact that this writ is enumerated with five other writs totally different in their nature and functions, with no appropriate jurisdiction conferred there or elsewhere in the Constitution indicating that it wab intended to be used as an aid to jurisdiction, rather than as the foundation of jurisdiction, just as its associates were intended to be used, seems to have escaped the attention of the court entirely. The peculiarity of the provision in including the injunction *561in this list of original writs, and the functions thus assigned to it, standing, as it does, divorced from its old associates, is fully considered in Attorney General v. Chicago & N. W. Ry. Co. 35 Wis. 425. It is there held that it is assigned a new duty, and is to be used as a perogative or quasi perogative writ where it is a proper remedy in matters publici juris at the instance of the attorney general, but not in suits between private parties. The same was said of all these writs in Attorney General v. Blossom, 1 Wis. 277, and these cases were followed by Mr. Justice Corliss in State ex rel. Moore, v. Archibald, 5 N. Dak. 359, 66 N. W. 234. The writ of injunction has heretofore issued from this court as an original writ at the instance of private parties in election cases, as the only suitable remedy, though the propriety of the practice was never settled by express adjudication until the decision in State ex rel. Clarke v. Moran (at the present term), ante p. 433, 63 Pac. 390. [State ex rel. Woody, v. Rotwitt, 18 Mont. 502, 46 Pac. 370; State ex rel. Russel, v. Tooker, 18 Mont. 540, 46 Pac. 530; State ex rel. Metcalf, v. Johnson, 18 Mont. 548, 46 Pac. 533; State ex rel. McLaughlin, v. Bailey, 18 Mont. 554, 46 Pac. 1116; State ex rel. Gillis, v. Johnson, 18 Mont. 556, 46 Pac. 440; State ex rel. Matts, v. Reek, 18 Mont. 557, 46 Pac. 438; State ex rel. Matts, v. Fisher, 18 Mont. 560, 46 Pac. 1117.) But, whatever may be its legitimate uses, the briefest examination of it and all the other shows that they are intended to be used by this court in its discretion as original writs, each in its appropriate function, and not merely as instrumentalities for the exercise of any other jurisdiction. They are unsuitable as a class for supervisory purposes within the meaning of the provision. All, except the writ of injunction, had well defined uses at the common law, and all, except this and the writ of quo warranto, had been in use under the territorial government performing their common-law functions for many years at the time the Constitution was adopted. None of them, except certiorari and prohibition, go exclusively to courts, or tribunals, or officers exercising judicial functions, and these two have always been limited to an inquiry into *562questions of jurisdiction only. (State ex rel. King et al. v. District Court, 24 Mont. 494, 62 Pac. 820; State ex rel. Scharnikow, v. Hogan, 24 Mont. 379, 62 Pac. 493; State ex rel. Boston & Montana Consol. C. & S. Mining Co. v. District Court, 22 Mont. 220, 56 Pac. 219.) They are in no sense of the term writs suitable for the purpose of correction and revision upon mere errors in procedure. The writ of habeas corpus never goes to courts, but to individuals only, to inquire into the legality of the imprisonment complained of. The writ of quo warranto also goes to an individual to inquire by what authority he usurps an office or exercises a public franchise. Mandamus compels the performance of an act on the part' of a tribunal, board, or person which the law enjoins as a duty resulting from an office, trust, or station, but is never used to correct errors merely, or to control discretion. The writ of injunction also goes to persons, and not to courts, whether it be limited to questions publici juris or extended to the adjustment of private rights.

While this Court may use any of these writs which are appropriate as aids in the exercise of its other powers, it may not pervert them from their legitimate uses, or restrict their uses to purposes for which they were not intended. The Constitution confers powers to be exercised by them, and we must not prescribe limits where there are none, nor assume authority where none is conferred. We are authorized to issue these writs, in our discretion, for whatever purpose they are suitable, without limitation or qualification. Both the other grants are ‘ ‘under such regulations and limitations as may be prescribed by law. ’ ’ As the appellate jurisdiction was granted for the purpose of revision and correction, and the original jurisdiction under these writs was granted to enable us to render such relief as is appropriate under them, so the supervisory power was granted to meet emergencies to which those other powers and instrumentalities are not commensurate. It is independent of both, and was designed to infringe upon the functions of neither. It has its own appropriate functions, and, without undertaking to define particularly what these *563functions are, we think one of them is to enable this court to control the course of litigation in the inferior courts where those courts are proceeding within their jurisdiction, but by a mistake of law, or willful disregard of it, are doing a gross injustice, and there is no appeal, or the remedy by appeal is inadequate. Under such circumstances, the case being exigent, no relief could be granted under the other powers of this Court, and a denial of a speedy remedy would be tantamount to a denial of justice. Cases may arise also where some relief could be granted under some one of the other original writs named, but such relief would not be complete and “adequate because of some error which could not be corrected by means of the limited functions of the particular writ, while the supervisory power is unlimited in the means at our disposal for its appropriate exercise.

This brings us to the consideration of the question whether the power is dormant, under the restrictions of the clause, ‘ ‘under such regulations and limitations as may be prescribed by law, ’ in the absence of procedure provided by the legislature. While the legislature cannot decrease the powers granted by the Constitution, this clause evidently intended that that body should provide the mode of procedure to be employed, by which, and the limitations as to time within which, both these powers should be invoked; for, though the power of the court is plenary, it cannot be exercised until a mode for its exercise has been provided. Yet, by this statement we do not concede that the legislature, by failure to act, can render these powers of no avail. It is a question worth consideration whether, in the absence of action on its part, this Court has the power to establish rules for the exercise of its appellate and supervisory powers. Some procedure must be provided by which the individual litigent may avail himself of the relief which the Court has power to grant. It is in this sense that an appeal is the creature of the statute, and that the right to it does not exist unless it is provided for. (Hayne on New Trial & App., Sec. 181; Appeal of Houghton, 42 Cal. 52). This holding we believe to be sound, and in con*564formity with the weight of authority. (Story on the Const., Sec. 1773; In re Petition of Attorney General, 40 Neb. 402, 58 N. W. 945; Works on Jur. 170; Teas v. Robinson, 11 Tex. 777; People v. Richmond, 16 Colo. 274, 26 Pac. 929). By analogy the same observations apply to our supervisory power. But conceding, for the sake of argument, that this Court has no power to proceed in the absence of legislative action, we find ample provision in the Code for the exercise of this power. Section 205 of the Code of Civil Procedure provides: “When jurisdiction is, by the Constitution or this Code, or any other statute, conferred on a court or judicial officer, all the means necessary to carry into effect are also given; and in the exercise of this jurisdiction, if the course of proceeding be not specifically pointed out by this Code or the statute, any suitable process or mode of proceeding may be adopted which may appear most conformable to the spirit of this Code. ’ ’ The legislature having fully provided for appeals, and recognizing the difficulty to be met with in defining the supervisory power and the mode of its exercise, thus left it to this Court upon proper occasion to adopt such means as would seem to it to meet the exigencies of the case; for there is no other jurisdiction vested in this Court for which ample provision is not made either by law or the Constitution itself, and the section is of no significance unless it has reference to the jurisdiction in question. At any rate, the provision is broad enough to cover the exercise of the power, and we hold that, if any legislation is needed, this section is ample to authorize its use in its utmost vigor.

As we have seen, however, the .writ of certiorari is not a suitable means for the exercise of supervisory control in this case, for the reason- that there has been no excess of jurisdiction. This precludes any relief under this writ.. It must be conceded that in State ex rel. Boston & Montana Consol. C. & S. Mining Co. v. District Court, 22 Mont. 220, 56 Pac. 219, there is an intimation contrary to the view we here take, but the statement in that case containing this intimation is a dictum, not necessary nor pertinent to the question there under *565discussion. The question therefore arises: What is the proper instrument by which to exercise this power? The only answer is that it must be framed when the case properly arises, and, for want of a better name, may be denominated a supervisory writ. It must be suitable, not only to examine into questions of jurisdiction, but it must also extend to the review of errors of law and abuses of discretion within the limits of jurisdiction. Upon the facts of the case presented, the supervisory writ, or one of the others, might be granted, according to the relief to which the applicant might be entitled. The supervisory writ, being broader in its scope, would afford relief by restraining the inferior court to the bounds of jurisdiction, or compelling a performance of duty, as well as by a correction of errors and abuses of discretion requiring prompt" action; but relief under any one of the other writs would be confined to the scope of the particular writ.

In reaching these conclusions we have not overlooked the fact that the courts of many of the states, as appears from the cases cited, have frequently used the writs of certiorari and mandamus as supervisory writs. We do not feel inclined to follow them, for this course would, under our view of the well settled functions of these writs in this jurisdiction, be an unauthorized use of them.

It therefore follows that, though the' district court may have erred in releasing the witness Ramsey, we have no power to review its action under the writ of certiorari, because it was acting within the bounds of its appropriate jurisdiction, and not in excess thereof.

From the foregoing considerations it becomes unnecessary to consider the question whether the notary had power to commit the witness for the alleged contempt. This question is reserved. The writ heretofore issued is vacated, and the application is dismissed, at the cost of the relator.

Dismissed.