In re Petition of the Attorney General Relative to Rules of the Supreme Court In Original Cases

• Decision Date: 02 May 1894
• Docket Number: 6801
• Citation: 58 N.W. 945,40 Neb. 402
• Parties: IN RE PETITION OF THE ATTORNEY GENERAL RELATIVE TO RULES OF THE SUPREME COURT IN ORIGINAL CASES
• Court: Nebraska Supreme Court

58 N.W. 945

40 Neb. 402

IN RE PETITION OF THE ATTORNEY GENERAL RELATIVE TO RULES OF THE SUPREME COURT IN ORIGINAL CASES

No. 6801

Supreme Court of Nebraska

May 2, 1894

PETITION of attorney general for rules relative to original cases in the supreme court.

George H. Hastings, Attorney General, and E. Wakeley, for petitioner:

Section 2, article 4, of the constitution confers upon the supreme court original jurisdiction in civil cases in which the state shall be a party. That the legislature cannot take away, nor impair, this jurisdiction, either by express action or by non-action, is an elementary proposition. (Kane v People, 4 Neb. 509; State v. Frazier, 28 Neb 454; Harris v. Vanderveer, 21 N. J., Eq., 424; Callanan v. Judd, 23 Wis. 343; Commonwealth v Commissioners of Allegheny County, 37 Pa. St., 237; Haight v. Gay, 8 Cal., 297; McMillan v. Savage, 6 Fla., 748; Montross v. State, 61 Miss. 429; Ex parte Whitlow, 59 Tex. 273; Green v. Jersey City, 42 N.J.L. 118.)

Such grant of jurisdiction, especially to the supreme court of the sovereignty, carries with it, as an incident, the power to make the grant effective by resort to necessary writs, rules, or other usual instrumentalities. (State v. Brailsford, 2 Dal. [U.S.], 402; Kentucky v. Dennison, 24 HOW [U.S.], 66; Chisholm v. Georgia, 2 Dal. [U.S.], 419; Grayson v. Virginia, 3 Dal. [U.S.], 320; Huger v. South Carolina, 3 Dal. [U.S.], 339; Oswald v. New York, 2 Dal. [U.S.], 415; New Jersey v. New York, 3 Pet. [U.S.], 461, 5 Pet. [U.S.], 284; Rhode Island v. Massachusetts, 12 Pet. [U.S.], 657, 756; Nebraska v. Iowa, 143 U.S. 359; Attorney General v. Blossom, 1 Wis., 277; Attorney General v. Chicago & N. R. Co., 35 Wis. 425.)

All courts of record have inherent power to make necessary rules for exercising their jurisdiction. (Barry v. Randolph, 3 Bin. [Pa.], 277; Vanatta v. Anderson, 3 Bin. [Pa.], 417; Snyder v. Bauchman, 8 S. & R. [Pa.], 336; Harris v. Commonwealth, 35 Pa. St., 416; Risher v. Thomas, 1 Mo., 739; Brooks v. Boswell, 34 Mo. 474; Kennedy v. Cunningham, 2 Met. [Ky.], 538; David v. AEtna Ins. Co., 9 Iowa 45; Seymour v. Phillips & Colby Construction Co., 7 Biss. [U. S. C. C.], 460; Texas Land Co. v. Williams, 48 Tex. 602.)

The grant of original jurisdiction to this court in civil cases in which the state shall be a party is not qualified by section 22, article 6, of the constitution. (Michigan State Bank v. Hastings, 1 Doug. [Mich.], 224; State v. Delesdenier, 7 Tex. 76; Ex parte State of Alabama, 52 Ala. 231; State v. Stout, 7 Neb. 101; State v. Lancaster County Bank, 8 Neb. 218; Spencer v. Brockway, 1 O., 259; Esley v. People, 23 Kan. 510; People v. Miles, 56 Cal. 401; Green v. State, 73 Cal. 29; People v. Dennison, 84 N.Y. 272; Lowry v. Thompson, 25 S. Car., 416; Dunnington v. Ford, 80 Va. 177; Hagood v. Southern, 117 U.S. 52.)

The usage and practice since juries were first known clearly demonstrate that the right of trial by jury does not require that jurors shall be drawn or selected by any particular method, or in any particular manner. The method may be regulated by statute, or by judicial action, when necessary; and any method may be adopted which is likely to secure a trial by a fair and impartial jury of twelve men. (Shaffer v. State, 1 HOW [Miss.], 238; United States v. Woodruff, 4 McLean [U. S. C. C.], 105; Watson v. Walker, 33 N. H., 131; People v. Harding, 53 Mich. 48; Claussen v. La Franz, 1 Iowa 226; United States v. Fries, 3 Dal. [U.S.], 515; King v. State, 38 Wis. 71.)

A party no longer has the right to a jury of the vicinage. The reason of the common law rule has not only ceased, but by the changed nature of jury trials the jury should be selected upon the contrary principle. In most cases jurors should be selected, not as at common law, because they are of the vicinage, but because they are not, and therefore do not know the parties or the facts. (Thompson & Merriam, Juries, 1; Schmidt v. New York Union Mutual Fire Ins. Co., 1 Gray [Mass.], 529; Taylor v. Gardiner, 11 R. I., 182; Baccigalupo v. Commonwealth, 33 Gratt. [Va.], 807; State v. Lake City, 25 Minn. 404.)

The provision for trial by jury in the constitution of the United States has no application to state courts. A trial in this court with or without a jury would be with "due process of law." (Walker v. Sauvinet, 92 U.S. 90.)

T. M. Marquett, John H. Ames, J. H. Broady, J. C. Cowin, George E. Pritchett, Griggs, Rinaker & Bibb, and C. O. Whedon, contra, cited: Constitution, art. 1, secs. 3, 6, 13, 24; art. 6, secs. 2, 22; Laws, 1877, pp. 19-24; Stout v. State, 7 Neb. 102; State v. Andrews, 11 Neb. 523; Cooley, Constitutional Limitations, [4th ed.], pp. 99-103, 410, 319, 352-356; Hallenbeck v. Hahn, 2 Neb. 403; Ex parte Milligan, 4 Wall. [U.S.], 2; Proffatt, Jury Trial, sec. 80; Olive v. State, 11 Neb. 1; Swart v. Kimball, 43 Mich. 448; Kilbourn v. Thompson, 103 U.S. 168; United States v. State Bank, 96 U.S. 30.

OPINION

The substance of the petition is stated in the opinion.

RYAN, C.

The petition of the attorney general, filed in this court represented that by the constitution of this state it is provided that the supreme court shall have original jurisdiction in civil cases in which the state is a party, yet that no provision has as yet been made by law for the service of process in such cases, or as to the method of procedure by which such jurisdiction may be exercised, and that controversies have heretofore frequently arisen of such character and importance that it would have been greatly to the benefit, convenience, and advantage of the state if the attorney general, in his discretion, could have instituted and prosecuted such actions in this court, and that controversies of like character are liable frequently to arise in the future. As an instance of the controversies referred to, this petition referred to the necessity of the commencement and prosecution of an action, under the direction of the governor of this state, against John E. Hill, late state treasurer, and the sureties upon his official bond. The prayer of the attorney general's petition was that this court take such action as shall be proper and necessary in relation to the class of controversies described. Upon the suggestion of this court, notice of the proposed application was served upon ex-Treasurer Hill and the sureties on his official bond. When the petition of the attorney general was presented, he and his associate counsel, on the one hand, and counsel for ex-Treasurer Hill and the sureties on his official bond, on the other hand, submitted exhaustive briefs and oral argument, addressed to this court's jurisdiction of the subject-matter in controversy as against ex-Treasurer Hill and his sureties, rather than the mere formulation of rules for the exercise of such jurisdiction. The constitutional provision discussed were those following, each being contained in "Article (VI)--The Judicial Department."

"Sec. 2. The supreme court shall consist of three judges, a majority of whom shall be necessary to form a quorum or pronounce a decision. It shall have original jurisdiction in cases relating to the revenue, civil cases in which the state shall be a party, mandamus, quo warranto, habeas corpus, and such appellate jurisdiction as shall be provided by law."

"Sec. 22. The state may sue and be sued, and the legislature shall provide by law in what manner and in what courts suit shall be brought."

Adversely to the attorney general's application it is insisted that these two constitutional provisions, for the purpose of construction, should be read as a single enactment, thus: "The state may sue and be sued, and the legislature shall provide by law in what manner and in what courts suits shall be brought, and the supreme court shall have original jurisdiction in civil cases in which the state shall be a party." Commenting upon this consolidation counsel say: "So read, the implication is too strong to leave room for doubt that the intent of the convention was merely and solely to include the supreme court in the class of tribunals from which it would otherwise have been excluded, upon which the legislature may devolve the duty of determining litigation of the kind mentioned in the first instance, and whose jurisdiction in this respect can only be called into action by legislative mandate." The chief argument against the jurisdiction of this court is indicated in the language of counsel quoted, and resolved into its primary elements, and stated in the simplest form, it is, first, the constitutional provisions quoted are not self-executing; and, second, that supplemental statutory enactments are necessary to bring into existence the otherwise inchoate jurisdiction of this court. It is at least doubtful whether the broad provision that this court "shall have original jurisdiction in civil cases in which the state shall be a party" should be qualified by a construction based upon an independent constitutional provision. Without considering this question, we shall now quote such provisions of the statutes as are deemed applicable to the considerations urged upon the line of argument suggested.

An act entitled "An act to amend chapter 13 of the Revised Statutes of 1866," approved February 27, 1879, contained the following provision:

"Sec 13. The supreme court shall have original jurisdiction in cases relating to the revenue, civil cases in which the state shall be a party, mandamus, quo warranto, and habeas corpus, and shall have appellate and final jurisdiction of all matters of appeal and proceedings in error which may be taken from the judgments or decrees of the district courts in all matters of law, fact, or equity, where the rules of law or the principles of equity appear from the files, exhibits, or...