Higgins v. Tax Assessors of Pawtucket

• Decision Date: 05 December 1905
• Citation: 27 R.I. 401,63 A. 34
• Parties: HIGGINS v. TAX ASSESSORS OF PAWTUCKET et al.
• Court: Rhode Island Supreme Court

63 A. 34

27 R.I. 401

HIGGINS

v. TAX ASSESSORS OF PAWTUCKET et al.

Supreme Court of Rhode Island.

Dec. 5, 1905.

Petition by James H. Higgins for a writ of mandamus against the tax assessors of Pawtucket and others. Certified to the Supreme Court. The superior court ordered to consider the application.

Argued before DOUGLAS, C. J., and DUBOIS, BLODGETT, JOHNSON, and PARKHURST, JJ.

Irving Champlin, for petitioner. Edward D. Bassett and Edward W. Blodgett, for respondents.

DOUGLAS, C. J. This is a petition for a writ of mandamus, addressed to the superior court sitting in Providence county, which was certified to this court upon the claim of the respondents "that section 12 of the court and practice act conferring jurisdiction upon the superior court, is contrary to the provisions of article 12 of the amendments of the Constitution of this state." The question is of so much importance that we feel bound to consider it at the present time, although from an inspection of the papers in the case it seems probable that the immediate occasion for the relief desired has passed. Article 12 of the amendments is as follows:

"Section 1. The Supreme Court shall have final, revisory, and appellate jurisdiction upon all questions of law and equity. It shall have power to issue prerogative writs and shall also have such other jurisdiction as may from time to time be prescribed by law. The majority of its judges shall always be necessary to constitute a quorum. The inferior courts shall have such jurisdiction as may from time to time be prescribed by law.

"Sec. 2. The judges of the Supreme Court shall give their written opinion upon any question of law whenever requested by the Governor or by either house of the General Assembly.

"Sec. 3. Sections 1 and 2 of this amendment shall take in the Constitution of the state the place of sections 2 and 3 of article X, entitled 'Of the Judicial Power,' which sections are hereby annulled.

"Sec. 4. Section 3 of article 14 of the Constitution of the state, entitled 'Of the Adoption of this Constitution,' is hereby annulled.

"Sec. 5. The General Assembly shall provide by law for carrying this amendment into effect, and until such provision shall be made, the Supreme Court, as organized at the time of the adoption of this amendment, shall continue to have and exercise the same powers and jurisdictions which it shall then have under such organization."

Laws 1903, p. 2, c. 1089.

Article 12 of the amendments was adopted as part of a plan to make the Supreme Court primarily a court of appellate jurisdiction, leaving to a subordinate tribunal general original jurisdiction in law and equity. The old system, which divided these jurisdictions between two divisions of the Supreme Court, made it necessary to add to the number of the judges whenever more jury sessions were required, and the court was likely to become unwieldy. To many minds, also, a court where final adjudications of legal questions were made by a quorum of less than one-half the number of its judges was not logically constituted. A comparison of article 12 of the amendments with the former provisions of the Constitution relating to the Supreme Court will show the extent of the changes intended to be made. Article 10 of the Constitution is entitled "Of the Judicial Tower." Section 1 reads as follows: "The judicial power of this state shall be vested in one Supreme Court and in such inferior courts as the General Assembly may from time to time ordain and establish." This section is not changed. Sections 2 and 3, which are annulled by the amendment, read as follows:

"Sec. 2. The several courts shall have such jurisdiction as may from time to time be prescribed by law. Chancery powers may be conferred on the Supreme Court but on no other court to any greater extent than is now provided by law.

"Sec. 3. The judges of the Supreme Court shall in all trials instruct the jury in the law. They shall also give their written opinion upon any question of law whenever requested by the Governor or by either house of the General Assembly."

Section 3 of article 14 provides: "The Supreme Court established by this Constitution shall have the same jurisdiction as the Supreme Judicial Court at present established, and shall have jurisdiction of all causes which may be appealed to or pending in the same; and shall be held at the same times and places, and in each county as the present Supreme Judicial Court, until otherwise prescribed by the General Assembly." This section, which was evidently intended to be of temporary application, is annulled.

1. The effect of the amendment is to give to the General Assembly complete control over the distribution of the judicial power amongst the courts which it may establish, with the exception of the reservation of powers in the Supreme Court which the amendment specifies. The radical changes in the judicial system which are indicated are these: Original jurisdiction in equity may now be given to an inferior court. Jury trials must be held in an inferior court; for to require a majority of the members of the Supreme Court to attend at a jury trial would prevent more than one jury trial being held at the same time in the state. If we keep in view these objects of the amendment, its scope is quite plain. The Supreme Court remains the court of last resort, the embodiment of ultimate judicial power, and is given irrevocably the instruments which are required to make its supervisory jurisdiction effectual. This we think is the tenor of the provision that it shall have power to issue prerogative writs, meaning, doubtless, those writs which were originally issued by the exercise of the royal prerogative, but which have now, in a different state of society, lost their original character and become the channels through which a court does justice to parties in certain cases where the ordinary forms of action are unavailing. There are here no exclusive words like the provision with regard to chancery powers in section 2 of article 10, which has been superseded. The General Assembly can neither take from the Supreme Court its supremacy nor the means of exercising it; but it may grant to other courts such jurisdiction as it may deem proper and may provide such instruments or forms of process as it may think necessary for the exercise of such jurisdiction. The amendment does not grant in terms exclusive power to issue prerogative writs to the Supreme Court, but, on the contrary, provides that the inferior courts shall have such jurisdiction as may be prescribed by law. The words of the last clause are as broad as possible, only preserving the subordination of other courts to the Supreme Court.

2. The ultimate supervisory jurisdiction over all inferior courts and tribunals given to the Supreme Court by the Constitution is inherent in its nature as a Supreme Court, and in so far as it is ultimate cannot be placed concurrently in an inferior court; and the final determinations of the Supreme Court are to be accepted as law by all other tribunals; but this does not prohibit the creation of other courts with power to entertain and decide any controversies which may be submitted to them by the provisions of statute law. The respondent urges against this construction of the amendment that it violates the accepted maxim, "Expressio unius est exclusio alterius." The maxim is undoubtedly a sound rule of construction in cases where it is applicable. Thus it was invoked by the justices of this court in their opinion given to the Senate (In re Constitutional Convention, 14 R. I. 649), which is cited by the respondent. There it was held that the specified method of amending the Constitution was the only lawful method; and it is difficult to imagine a reason for selecting one method out of several possible ones, if all the others were still to remain legal and available. So in Taylor v. Place, 4 R. I. 359, Chief Justice Ames established the proposition that the fundamental intention of the Constitution was to lodge the sovereignty of the state in three departments, the legislative, the executive, and the judicial, and therefore the affirmative words of the Constitution granting judicial power to the Supreme Court and such other courts as the General Assembly should establish were construed as taking away such power from the General Assembly. In Marbury v. Madison, 1 Cranch, 137, 2 L. Ed. 60, Chief Justice Marshall extended the application of this rule much further than the case required; but in the later case of Cohens v. Virginia, 6 Wheat. 399, 5 L. Ed. 257, he expressly retracted these dicta and laid down the rule, which has been generally followed since his time, in these words: "The court may imply a negative from affirmative words, where the implication promotes, not where it defeats the intention."

The respondent advances the propositions that "an enumeration of powers operates as a restriction and limitation of a general grant, and the designation of cases in which courts have original jurisdiction is a direct prohibition of jurisdiction in other cases." These principles would be applicable here if the amendment had provided that the Supreme Court "shall have power to issue prerogative writs" and omitted the following words: "And shall also have such other jurisdiction as may from time to time be provided by law." Here is a positive grant of enumerated powers and of such other powers as may be given by law as well. In Canby v. Hartzell, 167 Ill. 628, 48 N. E. 687, which the counsel cites, the Constitution gave the Supreme Court "final appellate and revisory" jurisdiction in all matters of law and equity and the power to issue prerogative writs; but it did not also give the Legislature power to add to this jurisdiction, and the decision of the court that an act of the Legislature giving the Supreme Court original jurisdiction in election cases was unconstitutional has no application to the case at bar. In Bell v....