Lane v. Charless

• Decision Date: 30 June 1838
• Citation: 5 Mo. 285
• Parties: LANE & MCCABE v. CHARLESS
• Court: Missouri Supreme Court

5 Mo. 285

LANE & MCCABE

v.CHARLESS

Supreme Court of Missouri.

June Term, 1838.

B. MULLANPHY, for Applicants. 1. It may be assumed from the authorities cited, that an injunction is parcel of chancery or equity jurisdiction. 2. That all original jurisdiction in civil cases, and especially in equity or chancery cases, has been given to the General Assembly for the purpose of distributing the same. That the General Assembly hath, by statutory enactment, made the distribution, and in so doing, has given to this court the original jurisdiction in this case. 3. It may be assumed that the writ of injunction is an original remedial writ, and that the power to grant such original remedial writ has been given to this court-- vide 9th and 10th sec., art. 5, State Constitution; Mo. Stat. p. 32, §§ 1 and 2; Constitution, art. 5, §§ 2 and 6.

PRIMM & DRAKE, for Jos. Charless. Art. 5, § 1, State Constitution, provides that the judicial power, as to matters of law and equity, shall be vested in a Supreme Court, in a Chancellor, in Circuit Courts, and in such other inferion tribunals as the General Assembly may from time to time ordain. § 2. The Supreme Court, except in cases otherwise directed by this Constitution, shall have appellate jurisdiction only. § 3. The Supreme Court shall have power to issue writs of habeas corpus, mandamus, quo warranto, certiorari, and other original remedial writs, and to hear and determine the same. It is evident that, under the first section of the 5th article, the power claimed cannot be derived. Its phraseology is not such as to give judicial power as to matters of law and equity to each of the courts therein mentioned. By the 2d section the jurisdiction of the Supreme Court is declared to be appellate only, except in cases otherwise directed by the Constitution. It is conceived that the amendments to the Constitution have not changed this state of things. The first section abolishes the office of Chancellor, and declares that the Supreme Court and Circuit Courts, shall exercise chancery jurisdiction. The 2d section declares that the judicial power, as to matters of law and equity, shall be vested in a Supreme Court, &c. The defendant contends that the jurisdiction is concurrent only with that of the Circuit Court, which court has already refused the prayer of the petitioners. The matter is, therefore, res adjudicata.

MCGIRK, J.

Lane and McCabe made a motion to this court for an injuncion to restrain Charless from doing certain things stated in their bill of complaint. The bill is produced, and notice to the opposite party has been admitted. Messrs. Primm & Drake, of counsel for the defendant, Charless, oppose the motion on the ground that the granting an injunction by this court, is the exercise of original jurisdiction by this court, and that by the Constitution of the State, this court cannot exercise original jurisdiction in any case, unless in cases expressly or impliedly provided for by the Constitution, and that this case is no one of them. In considering this matter, two questions arise. The first is, what is the exercise of original jurisdiction? The word imports that, when the case or point is first passed on judicially, or by a judicial officer, in such manner that the act done by such court or officer is of legal binding force on the rights of the parties, temporarily or perpetually, such act is original, and it is judicial, because it is done by a judicial officer, and has the binding force of a judgment as long as it is in force. To hear a bill in chancery--to deliberate thereon sufficiently, to be satisfied or not whether an injunction ought or ought not to be granted, is a judicial investigation; and if the Supreme Court, or a Judge thereof, do this for the first time, it cannot be said to be in any sense whatever the exercise of any appellate jurisdiction. If the act be judicial at all, then it must be an original judicial act.

I will now proceed to inquire whether the Supreme Court, or any of the judges thereof, can constitutionally exercise this power. The 1st sec. of the 5th art. of the State Constitution declares: “The judicial power, as to law and equity, shall be vested in a Supreme Court, in a Chancellor, in Circuit Courts, and such inferior tribunals as the General Assembly may from time to time ordain and establish.” By this seetion the judicial power is vested in three several courts in mass. The 3d sec. proceeds to deal out to each court its portion of this judicial power.

The section addresses itself to the Supreme Court, and says the Supreme Court, except in cases otherwise directed by this Constitution, shall have appellate jurisdiction only It is most apparent then, that, but for the exceptions, this court would have no original...