In re Exercise of the Original Jurisdiction of the Supreme Court

• Decision Date: 04 March 1930
• Citation: 229 N.W. 643,201 Wis. 123
• Parties: IN THE MATTER OF THE EXERCISE OF THE ORIGINAL JURISDICTION OF THE SUPREME COURT.
• Court: Wisconsin Supreme Court

201 Wis. 123

229 N.W. 643

IN THE MATTER OF THE EXERCISE OF THE ORIGINAL JURISDICTION OF THE SUPREME COURT.

Supreme Court of Wisconsin.

March 4, 1930.

Suggestions as to proper practice in cases sought to be presented to the Supreme Court in exercise of its original jurisdiction.--[By Editorial Staff.]

PER CURIAM.

Section 3, art. 7, of the Constitution, provides: “The supreme court, except in cases otherwise provided in this constitution, shall have appellate jurisdiction only, which shall be coextensive with the state; but in no case removed to the supreme court shall a trial by jury be allowed. The supreme court shall have a general superintending control over all inferior courts; it shall have power to issue writs of habeas corpus, mandamus, injunction, quo warranto, certiorari, and other original and remedial writs, and to hear and determine the same.”

This grant of power is supplemented by section 251.10, Stats., which provides: “In addition to the writs mentioned in section 3 of article 7 of the constitution the supreme court shall have power to issue writs of prohibition, supersedeas, procedendo and all other writs and process not specially provided by statute which may be necessary to enforce the due administration of right and justice throughout the state; and any justice of said court in vacation shall, on good cause shown, have power to allow writs of error, supersedeas and certiorari, and also to grant injunctional orders.”

It is to be noted that the power conferred both by the Constitution and the statute is upon the court. The jurisdiction is not to be exercised save in the cases provided for by section 251.10, except upon leave of court first obtained.

There seems to be a misconception on the part of counsel as to the proper method to be employed in invoking the original jurisdiction of this court. The responsibility for this situation must, to a considerable extent, be shared by the court itself. There has been a wide departure from the former practice in recent years and a situation has arisen which prompted a re-examination of the whole matter, as a result of which the court is of the opinion that this memorandum should be filed for information of counsel.

There appear to be no statutory provisions relating to procedure in the Supreme Court except those relating to habeas corpus (chapter 292), mandamus and prohibition (chapter 293), and contempt proceedings, both civil and criminal (section 256.03 and chapter 295).

Counsel seeking to invoke the original jurisdiction of this court should be familiar not only with the constitutional and statutory provisions above referred to but with some of the leading cases, among which are the following:

State ex rel. Resley v. Farwell, 3 Pin. 393, is referred to not as authority but for its historical value. In this case the court held that the language of the Constitution, by which it is given power to issue writs of habeas corpus, mandamus, injunction, quo warranto, certiorari, and other original and remedial writs, and to hear and determine the same, conferred no jurisdiction but merely indicated how jurisdiction otherwise conferred might properly be exercised.

The matter came up again in Attorney General v. Blossom, 1 Wis. 317, in which the rule laid down in State ex rel. Resley v. Farwell was reversed and it was held that these writs conferred jurisdiction upon the court in addition to that otherwise conferred “because these are the very armor of sovereignty. Because they are designed for the very purpose of protecting the sovereignty and its ordained officers from invasion or intrusion, and also to nerve its arm to protect its citizens in their liberties, and to guard its prerogatives and franchises against usurpation. The convention [constitutional] might well apprehend that it would never do to dissipate and scatterthese elements of the State sovereignty among five, ten, twenty, or forty inferior tribunals, and wait their tardy progress through them to the supreme tribunal, upon whose decision must finally depend their efficacy!

“To preserve the liberties of the people, and to secure the rights of its citizens, the State must have the means of protecting itself.”

In that case the court was dealing with the writ of quo warranto which was an original writ at common law.

A new phase of the matter was presented in Attorney General v. Chicago & N. W. R. Co., 35 Wis. 426. In that case the Attorney General applied to the Supreme Court by way of information for writs of injunction to restrain the two different carriers from exacting fares or freight in excess of the maximum rates established by chapter 273 of the Laws of 1874. A consideration of this application presented the question of whether or not the court had original equity jurisdiction. At the common law the writ of injunction was not an original writ. It was ancillary in its nature and was not used to bring parties before the court.

Under a very similar provision the Supreme Court of the state of Michigan has held that the Supreme Court of that state has no original equity jurisdiction. See President, etc., of Bank of Mich. v. Niles, Walk. Ch. (Mich.) 398 and King v. Carpenter, 37 Mich. 363. And it was held in a learned opinion by Chief Justice Ryan, which has become a landmark in the law, that under the constitutional provisions cited the writ of injunction should be put to prerogative uses only, and so made a quasi prerogative writ. It was further held that equity jurisdiction was conferred upon the Supreme Court. Atty. Gen. v. Railroad Companies, ...