North Point Consolidated Irrigation Co. v. Utah & Salt Lake Canal Co.

• Decision Date: 29 October 1896
• Docket Number: 740
• Citation: 46 P. 824,14 Utah 155
• Court: Utah Supreme Court
• Parties: NORTH POINT CONSOLIDATED IRRIGATION COMPANY, RESPONDENT, v. THE UTAH AND SALT LAKE CANAL COMPANY ET AL., APPELLANTS

46 P. 824

14 Utah 155

NORTH POINT CONSOLIDATED IRRIGATION COMPANY, RESPONDENT, v. THE UTAH AND SALT LAKE CANAL COMPANY ET AL., APPELLANTS

No. 740

Supreme Court of Utah

October 29, 1896

Appeal from the Third judicial district court.Hon. John A. Street Judge.

Action by the North Point Consolidated Irrigation Company against the Utah and Salt Lake Canal Company and others.From an order granting a temporary injunction, defendants appeal.Motion to dismiss for want of jurisdiction.

Appeal dismissed.

Richards & Richards, for appellants:

On a motion for a re-hearing, appellants filed the brief from which the following is taken:

RULES FOR THE CONSTRUCTION OF STATE CONSTITUTIONS.

The legislature of a state has jurisdiction on all subjects on which its legislation is not prohibited by the constitution.Its powers are inherent, not being derived from the constitution, but restricted by it.Black on Interpretation of Laws, p. 25; Black's Constitutional Law, 260;Weister v. Hade,52 Pa. St. 474;Endlich on Interpretation of Statutes, sec. 535.

A state constitution should be liberally construed on broad general lines and not interpreted on narrow or technical principles.Black on Interpretation of Laws, p. 14;Story on the Constitution, sec. 413;Cooley's Constitutional Limitations, sec. 59;Sutherland on Statutory Construction sec. 248-49-50.

In case of ambiguity, the whole constitution is to be examined in order to determine the meaning of any part, and the construction must give effect to the entire instrument.Black on Interpretation of Laws, p. 17;Cooley's Constitutional Limitations, sec. 58;Sutherland on Statutory Construction sec. 239.

The constitution must be construed in the light of the statute and common law previously existing in the state.There is always a presumption against an unnecessary change of laws and when the constitution makes a change it is not to be extended by construction beyond the terms of the constitution.Black on Interpretation of Laws, pp. 19-110;Cooley's Constitutional Limitations, sec. 61;Brown v. Fifield,4 Mich. 322;Costigan v. Bond,65 Md. 122;Endlich on Interpretation of Statutes, sec. 520;Sutherland on Statutory Construction, secs. 290, 400.

The maxim, "expressio unius est exclusio alterius," is not an universal rule."The true rule is, in order to ascertain how far an affirmative or negative provision includes or implies others, that we must look to the nature of the provision, the subject matter, the objects, and the scope of the instrument."Potter's Dwarris on Statutes and Constitutions, pp. 674-5; Story on the Constitution, sec. 488-9, 453;Cohens v. Virginia,6 Wheat. 401;FederalistNo. 83;Endlich on Interpretation of Statutes, sec. 533;Sutherland on Statutory Construction, sec. 325.

The natural import of a single clause, is not to be narrowed so as to exclude implied powers resulting from its character, simply because there is another clause which enumerates certain powers within its scope.It cannot be assumed that the affirmative specification excludes all other implications.Story on the Constitution, sec. 449;Potter's Dwarris on Statutes and Constitutions, p. 675.

"It is a familiar rule that a statute in contravention or derogation of the common law ought not to be extended by construction.And there is always a presumption against an unnecessary change of laws.Accordingly it has been held that when a new constitution makes a change in the pre-existing law, whether common law or statutory, the change is not to be extended by construction beyond the very terms of the constitution."Black on Interpretation of Laws, p. 19;Black on Interpretation of Laws, p. 110.

The respondent seems to rely entirely upon the maxim, expressio unius est exclusio alterius, and claims that the enumeration in section 9, article VIII, excludes jurisdiction in all other cases.The only authorities cited by respondent are the cases of the United States v. Arredondo,6 Peters 725, andEx Parte Attorney General, 1 Cal. 85.Neither of these cases is in point.In the case first cited, while construing an act of congress, the court declared that this is an universal maxim in the construction of statutes.But the rule is not universal in the construction of constitutions.In the California case the court refused to take original jurisdiction in a case requiring a jury, and held that the constitution did not contemplate the exercise of such jurisdiction by the highest appellate court of the state.The true rule is, in order to ascertain how far our affirmative or negative provision includes or implies others, that we must look to the nature of the provision, the subject matter, the objects, and the scope of the instrument.These, and these only, can properly determine the rule of construction."Story on the Constitution, sec. 448;Endlich on Interpretation of Statutes, sec. 507.

Loofbourow & Kahn, E. W. Taylor, and John M. Zane, for respondent.

No brief was filed on motion for rehearing.

MINER, J. ZANE, C. J., concurs.BARTCH, J., disqualified to sit.

OPINION

MINER, J.:

Plaintiff filed its complaint, and obtained an order to show cause why an injunction should not be issued against the defendants restraining them from longer discharging the waste and befouled waters of a certain artificial drain ditch from Decker's Lake into the surplus water canal, and in and upon the lands of the plaintiff.Upon a hearing of this order for temporary injunction the court granted an injunction pendente lite, and on the 8th day of June, 1896, the defendants appealed from the order granting such injunction.Respondent now moves to dismiss the appeal, on the ground that no appeal lies to this court from an order granting an injunction pendente lite, and for the further reason that such order is not a final judgment under section 9, article 8, of the constitution of this state, and that no appeal lies except from a final judgment.

Section 4 of article 8 of the constitution of this state reads as follows: "The supreme court shall have original jurisdiction to issue writs of mandamus, certiorari, prohibition, quo warranto, and habeas corpus.Each of the justices shall have power to issue writs of habeas corpus, to any part of the state, upon petition by or on behalf of any person held in actual custody, and may make such writs returnable before himself or the supreme court, or before any district court or judge thereof in the state.In other casesthe supreme court shall have appellate jurisdiction only, and power to issue writs necessary and proper for the exercise of that jurisdiction.The supreme court shall hold at least three terms every year, and shall sit at the capital of the state."Section 9 of article 8 reads as follows: "From all final judgments of the district courts there shall be a right of appeal to the supreme court.The appeal shall be upon the record made in the court below, and under such regulation as may be provided by law.In equity cases the appeal may be on questions of both law and fact; in cases at law the appeal shall be on questions of law alone.Appeals shall also lie from the final orders and decrees of the court in the administration of decedent estates, and in cases of guardianship, as shall be provided by law.Appeals shall also lie from the final judgment of justices of the peace in civil and criminal cases to the district courts on both questions of law and fact, with such limitations and restrictions as shall be provided by law; and the decision of the district courts on such appeals shall be final, except in cases involving the validity or constitutionality of a statute."

Under section 4, the supreme court is given original jurisdiction to issue writs of mandamus, certiorari, prohibition, quo warranto, and habeas corpus.In these cases named it is clear the supreme court has original jurisdiction.This language follows: "In other casesthe supreme court shall have appellate jurisdiction only, and power to issue writs necessary and proper for the exercise of that jurisdiction."The question, in what other cases has the supreme court appellate jurisdiction? is answered by section 9: "From all final judgments of the district courts there shall be a right of appeal to the supreme court.Appeals shall also lie from the final orders and decrees of the court in the administration of decedent estates, and in cases of guardianship, as shall be provided by law.Appeals shall also lie from the final judgments of justices of the peace in civil and criminal cases, to the district court on both questions of law and fact, with such limitations and restrictions as shall be provided by law; and the decision of the district court on such appeal shall be final, except in cases involving the validity or constitutionality of a statute."The term in "other cases" cannot mean in all other cases, because, as is seen in section 9, the decision of the district court is made final and conclusive in appeals thereto from justices of the peace, except in stated cases.The legislature is given power to provide by law concerning appeals in probate cases, but no such power is conferred upon the legislature concerning final appeals from the district court.It is clear that the "other cases" referred to in section 4 has reference to those appeals from final judgments referred to in section 9, and no other.

This brings us to the further consideration of section 9.Whether this court has jurisdiction of this appeal depends upon the construction given that section.If the constitution gives a mere guaranty of the right of appeal from final judgments of the district courts, the power is reserved in the legislature to give a right of appeal in other cases.But, if the constitution gives not only...