Porter v. Flick

• Decision Date: 21 November 1900
• Docket Number: 11,662
• Citation: 84 N.W. 262,60 Neb. 773
• Parties: W. F. PORTER ET AL. v. TAYLOR FLICK ET AL
• Court: Nebraska Supreme Court

84 N.W. 262

60 Neb. 773

W. F. PORTER ET AL. v. TAYLOR FLICK ET AL

No. 11,662

Supreme Court of Nebraska

November 21, 1900

ERROR to the district court for Lancaster county. Tried below before HOLMES, J. Reversed.

REVERSED.

T. J Doyle, A. S. Tibbets and M. F. Harrington, for plaintiffs in error.

Blair & Richardson, contra.

SULLIVAN J. NORVAL, C. J. offered no opinion.

OPINION

SULLIVAN, J.

This proceeding in error brings here for review an order made at chambers by Hon. E. P. Holmes, one of the judges of the district court for the third judicial district, reversing a decision of the secretary of state touching the right of a new political organization to use the party name which it had adopted. Defendants in error contend that this court has no appellate jurisdiction in this class of cases and that this proceeding must, for that reason, be dismissed. The argument is (1) that the legislature has made no provision for reviewing decisions made at chambers by judges of the district court; and (2) that the intention of the law is that orders like the one here in question shall not be subject to revision. If the decision of Judge Holmes was a judicial decision, there can be no doubt about the authority of this court to review it. The constitution provides (sec. 23, art. 6.): "The several judges of the courts of record shall have such jurisdiction at chambers as may be provided by law." And section 24 of the bill of rights declares: "The right to be heard in all civil cases in the court of last resort, by appeal, error, or otherwise, shall not be denied." These provisions considered together make it plain that the determination of a civil matter by a judge at chambers is not final. The Code of Civil Procedure (sec. 582) provides: "A judgment rendered or final order made by the district court may be reversed, vacated, or modified by the supreme court, for errors appearing on the record." The word "court," as here used, has always been construed to mean, not only the tribunal over which a judge presides, but the judge himself when exercising, at chambers, judicial power conferred by statute. Smith v. State, 21 Neb. 552, 32 N.W. 594; Clark v. State, 24 Neb. 263, 38 N.W. 752; In re Van Sceiver, 42 Neb. 772, 60 N.W. 1037; Horton v. State, 60 Neb. 701, 84 N.W. 87.

We will now consider the character of the power conferred upon the judiciary by section 137 of the Australian ballot law. (Compiled Statutes, 1899, ch. 26.) So far as material to this inquiry the section reads: "All certificates of nomination which are in apparent conformity with the provisions of this act shall be deemed to be valid, unless objection thereto shall be duly made in writing within three days after the filing of the same. In case such objection is made, notice thereof shall forthwith be mailed to all candidates who may be affected thereby, addressed to them at their respective places of residence as given in the certificate of nomination. Objections to use of party name may also be made and passed upon in the same manner as objections to certificates. The officer with whom the original certificate was filed shall in the first instance pass upon the validity of such objection, and his decision shall be final, unless an order shall be made in the matter by a county court, or by a judge of the district court, or by a justice of the supreme court at chambers, on or before the Wednesday preceding the election. Such order may be made summarily upon application of any party interested, and upon such notice as the court or judge may require. The decision of the secretary of state, or the order of the judge, or supreme court justice revising such decision, shall be binding on all other county, municipal, or other officers with whom certificates of nomination are filed." That the authority given by this statute to the county court and to the judges of the district and supreme courts is in its nature judicial, we are entirely satisfied. It is to be presumed that the legislature intended to enact a constitutional law, and it is evident that this law would not be constitutional if the power conferred by it upon the judiciary is a non-judicial power. "The powers of the government of this state," says the constitution, "are divided into three distinct departments, the legislative, executive and judicial, and no person or collection of persons being one of these departments, shall exercise any power properly belonging to either of the others, except as hereinafter expressly directed or permitted." Constitution, art. 2. There being no express direction or permission which would make the power in question an exception to the general rule, the conclusion is inevitable that the legislature intended to give the judicial officers mentioned in the statute, an authority which they might lawfully exercise and none other. In other states the courts have, under similar statutes, exercised a revisory jurisdiction over the decisions of ministerial officers charged with the duty of preparing the official ballot. People v. District Court, 23 Colo. 150, 46 P. 681; Leighton v. Bates, 50 P. 856; Schuler v. Hogan, 168 Ill. 369, 48 N.E. 195; Fernbacher v. Roosevelt, 90...