Election
contest by Patrick V. Ryan against John Weston, in which
contestant instituted an original proceeding in the Supreme
Court under substitute for Senate bill No. 71, eighth
legislative assembly, for the appointment of a district judge
to temporarily hold court in the district in which the
contest was commenced. Proceedings dismissed.
This is
an original proceeding instituted in this court by Patrick V
Ryan for the purpose of securing an order designating a judge
of some district other than the Second Judicial District, to
try and determine the contested election case of Ryan v
Weston. The proceeding is taken under the provisions of an
act of the eighth legislative assembly of Montana, designated
as "Substitute for Senate Bill No. 71"
(unpublished), entitled "An act to provide for the
designation and appointment of a district judge to
temporarily hold court in another district than his own, and
to perform the official duties of the district judge of such
district where such judge is biased or prejudiced or for any
cause disqualified from performing the same," which is
as follows:
"Be
it enacted by the legislative assembly of the state of
Montana:
"Section
1. When a party to a civil action or proceeding pending in
any district court of the state has reason or cause to
believe that such party cannot obtain a fair and impartial
trial or determination of such action or proceeding, or of
any motion, or application therein made, by reason of the
bias or prejudice arising from any cause, of the district
judge presiding in the court, or any department thereof
where such action, proceeding, motion or application is
pending, or where such judge so presiding is from any other
cause disqualified from acting therein, such party or his
attorney may first request the judge of the district court
wherein such action, proceeding, motion or application is
pending, to sign a petition addressed to and asking the
Supreme Court, without stating grounds therefor, to
designate and appoint a judge of some other judicial
district of this state to hear, try and determine such
action, proceeding, motion or application, and if such
petition be signed by the district judge to whom the same
is presented the supreme court shall on presentation
thereof make an order designating and appointing the judge
of some judicial district of this state to hear, try and
determine such action, proceeding, motion or application as
in this act provided; but if the district judge to whom
such petition is presented refuses, or for the period of
three days fails, to sign said petition the party on whose
behalf the same is presented may by a petition verified by
the affidavit of petitioner or his agent or attorney
setting forth such bias or prejudice or other grounds of
disqualification and the facts upon which the same is
based, and the failure or refusal of the judge of the
district court or department thereof wherein such action
proceeding, motion or application is pending to sign a
petition for the appointment of another judge as herein
above provided, petition the Supreme Court, or the justices
thereof, to designate and appoint a district judge of some
other judicial district of this state to act in such cause
and the Supreme Court, or any two justices thereof, may
upon a summary hearing of such petition in court or
chambers with any further showing which may be by the court
or justices deemed proper, make an order designating and
appointing the judge of any judicial district of the state
other than that in which such action, proceeding, motion or
application is pending, to appear in the district in which
such action, proceeding, motion or application is pending,
at some proper and convenient time and preside at the trial
of such action, or other matter mentioned in the order, and
to determine the same, and to do any and all judicial acts
necessary, proper and lawful in and about the adjudication
and determination thereof, and in and about administering
proper relief therein with the same force and effect as if
done or ordered by the judge of the district wherein such
matter is pending.
"Sec.
2. Upon such order being made and filed in the action or
proceeding therein mentioned the judge or judges of the
district court wherein such action or proceeding is pending
shall not proceed further in such action or proceeding or try
or decide the same, nor do any other judicial act therein
except upon consent of the parties thereto or their attorneys
in writing.
"Sec.
3. The district judge designated and appointed in the order
of the Supreme Court in the cases in this act provided shall
have full power and authority to preside at the trial of and
to try and decide such action, proceeding, motion or
application mentioned in such order and to do all acts and
things lawful and proper to be done, in court or at chambers,
in and about the trial, adjudication, decision and granting
and administering all proper and lawful remedies and relief
and enforcing the same in said action, proceeding, motion or
application mentioned in such order of the Supreme Court as
could be done by a judge of the judicial district wherein
such action, proceeding, motion or application is pending and
upon receiving a copy of such order of the supreme court it
shall be the duty of the district judge therein designated
and appointed, to appear at the county seat of the county in
which such action, proceeding, motion or application is
pending, at some proper and convenient time and try the same,
but if from any cause he should fail so to do, the Supreme
Court may by its order designate another district judge to do
the same, who shall be vested with like powers in such
action, proceeding, motion or application: provided, that
neither party shall petition the Supreme Court more than once
in the same action or proceeding to designate and appoint
another judge to act therein under the provisions of this
act, except in cases where the district judge previously
appointed to act therein has failed from any cause so to do.
"Sec.
4. A district judge designated and appointed to hold court in
another district pursuant to the provisions of this act shall
be paid his actual expenses, to be allowed by the state board
of examiners and paid in the same manner as his regular
salary.
"Sec.
5. This act shall be in full force and effect from and after
its passage and approval."
Upon
the filing of the petition this court, on its own motion,
directed an order to be issued to the district judge in whose
department the case of Ryan v. Weston is pending, and to the
contestee, to show cause, if any they had, why the relief
prayed for should not be granted, and directed a hearing upon
the return thereof. At the hearing counsel for the district
judge and for the contestee filed a motion to dismiss the
proceedings, upon the ground that substitute for Senate bill
No. 71 is unconstitutional, and that this court has no
jurisdiction to entertain the petition or to grant the relief
prayed for. Upon this motion the questions involved were
argued and submitted for determination.
HOLLOWAY,
J. (after stating the facts).
"The
source of all power vested in the Supreme Court is the
Constitution of the state, and in it must be found the
measure of jurisdiction." The foregoing succinct
statement taken from the brief of the petitioner in the
proceedings No. 1,928 (In re Boston & M. Consol. Copper & Silver Min. Co., 72 P. 1103), correctly lays the
foundation for a determination of the question involved in
this controversy. The general rule, repeatedly affirmed and
now well understood, that the Constitution of the United
States represents a grant of power by the several states and
the inhabitants thereof to the general government, while the
Constitutions of the several states operate upon the
lawmaking branches of those governments as limitations of
authority, must be understood and considered in this
connection with the qualification which our own state
Constitution has attached, that "the provisions of this
Constitution are mandatory and prohibitory, unless by express
words they are declared to be otherwise." Section 29,
art. 3, Const. Mont. This declaration can have but one
meaning--that, with reference to those subjects upon which
the Constitution assumes to speak, its declarations shall be
conclusive upon the Legislature, and shall prevent the
enactment of any law which has for its purpose the extension
or limitation of the powers which they confer. An examination
of our Constitution discloses an attempt on the part of its
framers to define the jurisdiction of this Court, and such
definition must be accepted as a final declaration upon that
subject: (1) The Supreme Court shall have appellate
jurisdiction only, except as otherwise provided by this
Constitution (section 2, art. 8), and shall have power to
issue, hear, and determine such original and remedial writs
as may be necessary or proper to the complete exercise of its
appellate jurisdiction (section 3, art. 8). (2) It shall have
general supervisory control over all inferior courts, under
such regulations and limitations as may be prescribed by law.
Section 2, art. 8. (3) It shall have discretionary power to
issue, hear, and determine writs of habeas corpus, mandamus,
quo warranto, certiorari, prohibition, and injunction.
Section 3, art. 8.
For the
purpose of this discussion, these are transposed, and will be
considered in this order: (1) original jurisdiction; (2)
appellate jurisdiction; and (3) supervisory jurisdiction.
1.
Original Jurisdiction.
The
power to issue, hear, and determine the six original writs
enumerated above marks the limit of the original jurisdiction
of this court....