Robertson v. State ex rel. Smith

• Decision Date: 23 February 1887
• Citation: 10 N.E. 582,109 Ind. 79
• Parties: Robertson v. State ex rel. Smith.
• Court: Indiana Supreme Court

109 Ind. 79

10 N.E. 582

Robertson

v. State ex rel.Smith.¹

Supreme Court of Indiana.

February 23, 1887.

Appeal from circuit court, Marion county.

L. T. Michener and Harrison, Miller & Elane, for appellant. Jason B. Brown, David Turpie, and Cas. Byfield, for appellee.

ELLIOTT, C. J.

On the twelfth day of January, 1887, the relator, Alonzo G. Smith, filed an information against the appellant, praying an injunction against him restraining him from “obtruding, or attempting to intrude, himself into the office of lieutenant governor,” and for a judgment of ouster “excluding him” from that office. The relator's information alleges that, on the seventh day of November, 1884, the relator was duly elected a member of the senate of the general assembly of the state of Indiana, that he duly qualified, and that on the thirteenth day of April, 1885, he was chosen president of the senate; that he accepted the office, and entered on the discharge of its duties; that upon the assembling of the senate, in January, 1887, he was reelected president of that body, and was in possession of that office at the time the information was filed. It is also alleged that Manlon D. Manson was elected to the office of lieutenant governor in November, 1884, and that, having qualified, he held that office until July, 1886, when he vacated it, by accepting a federal office; that on the second day of November, 1886, at the general election then held, a majority of the voters of the state, assuming that a vacancy existed in the office of lieutenant governor, were procured to vote for the respondent for that office; that returns of the vote, regular in form, were made by the proper officers; that such returns were duly certified to the secretary of state, and that certified statements of the votes were delivered to the speaker of the house of representatives. It is further alleged that, on the tenth day of January, 1887, the speaker of the house of representatives opened and published the returns in the presence of the members of the house of representatives, the senate not being present nor in session at the time; that the speaker declared that the respondent had received a majority of the votes cast at the election, and had been duly elected lieutenant governor; that the respondent thereupon took the oath of office, and unlawfully intruded into the office by attempting to exercise its functions and duties, and that the speaker of the house recognized him as the lieutenant governor of the state. The information also avers that the respondent claims the right to exercise the function of the office of the president of the senate, and is unlawfully interfering with the rights of the relator as such officer; and that the senate, by a majority of its members, supports the claim of the relator to be the presiding officer, while the house of representatives, by a majority of its members, sustains the claim of the respondent. Summons was issued and served on the appellant; and a temporary restraining order was granted, enjoining him from attempting to perform any of the duties of the office of president of the senate. From this order the appellant appeals.

On the thirteenth day of January, 1887, the appellant entered a special appearance, and filed a verified plea, denying the jurisdiction of the court, alleging in his plea that he had never been a resident or inhabitant of Marion county, but was, and had been for more than 20 years, a resident and citizen of the county of Ablen. The appellee demurred to this plea, and his demurrer was sustained.

The question at the threshold is this: Had the circuit court jurisdiction to hear and determine the cause? If that court had no power over the cause, this court, of course, has none.

Two things are absolutely essential to the power of a court to decide a legal controversy,-jurisdiction of the subject-matter, and jurisdiction of the person. Both must exist, otherwise it is the imperative duty of the court to decline to do more than ascertain and declare that it has no power to examine or decide the merits of the controversy. Authors and courts agree upon this rudimentary principle of law. Neither in reason nor upon authority can there be a doubt as to its soundness. Power is essential to the validity of every act, judicial, legislative, or executive. Where there is no power to hear and determine, there can be no judicial decision. Expressions of individual opinion there may be, but a judicial judgment there cannot be. A judicial judgment is the product of power,-the power of the law,-and is not the mere expression of the individual opinion of the judge. The question is purely and intrinsically one of power, for the jurisdiction of a court consists solely in its power to hear and determine the causes brought to its bar. If jurisdiction does not exist, power is absent; and, if power is lacking, an expression of opinion, upon any other than a jurisdictional question, although judicial in form, is simply the opinion of its author,-valuable it may possibly be as an argument, but effective as the opinion of the court it is not. “Jurisdiction,” says a recent writer, “is the right to pronounce judgment acquired by due process of law.” Herm. Estop. § 69. At another place this writer says: “Jurisdiction is authority to hear and determine.” Id. § 73. Again, speaking of the court, he says: “It must act judicially in all things, and cannot then transcend the power conferred by law.”

In Mills v. Com., 13 Pa. St. 627, the court said: “‘Jurisdiction’ is the power and authority to declare the law. The very word in its origin imports as much. It is derived from the words ‘ juris' and ‘ dico,’-‘I speak by the law.”’

Chief Justice Shaw said: “To have jurisdiction is to have power to inquire into the fact,” and “to apply the law.” Hopkins v. Com., 3 Metc. 460.

Chief Justice Marshall, speaking upon a kindred subject, said: “Judicial power, as contradistinguished from the power of the laws, has no existence. Courts are the mere instruments of the law, and can will nothing.” Osborn v. United States Bank, 9 Wheat. 738.

In In re School-law Manual, 4 Atl. Rep. 878, the supreme court of New Hampshire declared that, where there was no jurisdiction, it was not only the duty of the court not to express an opinion, but it was its duty not to have an opinion, on the merits of the cause.

The supreme court of Texas in Withers v. Patterson, 27 Tex. 491, said: “The jurisdiction of a court means the power or authority which is conferred upon a court by the constitution and laws to hear and determine causes between parties, and to carry its judgments into effect.”

These are a few only of the many statements that abound in the books and reports, and declare what all must concede to be the law of the land. Acceptingthese statements as correct, then the conclusion must be that, where there is no jurisdiction, there is no power. No consideration can be imagined, nor reason conceived, which will justify a court in assuming to pronounce a judgment where it has neither the right nor the power to hear or decide. It is only where courts can speak by the law that they can rightfully speak at all. An expression of opinion by a judicial tribunal, where it has no power to speak by the law, is utterly devoid of force. A decision without jurisdiction is a judgment only in form, for it is absolutely and everywhere void. The author from whom we have quoted says: “If a court has no jurisdiction, its decision is a nullity; and it matters not what facts it finds, or what questions it decides,-in fact they are nullities. If without jurisdiction it cannot adjudicate the real merits of the case, it cannot adjudicate any other question, whether it be introductory, incidental, or collateral.” Herm. Estop. § 68. Another author says: “Where there is no jurisdiction, it does not belong to the proper functions of a court to give an opinion upon a matter submitted to them for the guidance of parties or inferior tribunals. * * * The whole business of a court is confined to giving decisions in cases properly before it.” Wells, Jur. 10. In Elliott v. Piersol, 1 Pet. 328, the supreme court of the United States said, in speaking of a court: “But, if it act without authority, its judgments and orders are regarded as nullities.” Our own court has decisively affirmed this elementary doctrine. Smith v. Myers, 9 N. E. Rep. 692, (this term.)

The only course which a court can rightfully pursue is to decline to speak in all cases where it cannot speak by the law. It is not a matter of choice; it is a matter of duty. The duty is as solemn and imperative as any one among all the grave duties that rest upon the courts of the country. Nor ought the courts to give opinions which are in form judgments, but in reality mere phantomatic resemblances, since, in more ways than one, such a course is productive of evil.

To the judicial department, as the most conservative of all the co-ordinate branches of the government, is intrusted the high duty of declaring and enforcing the law as it exists, and upon the officers of that department rests, more strongly than upon the officers of the other departments, the solemn obligation to unwaveringly abide by the established principles of law. A great and important part of the duty of the courts is to compel citizens and officers to obey the rules of law, and they cannot, upon any imaginable ground, be themselves excused for violating those principles. It is the plain and solemn duty of the courts to apply to themselves the rules which they enforce against others. Courts, most of all the instruments of the law, should sternly refuse to transgress its rules. It is an established principle of law, long settled and firmly maintained, that courts will not decide any question affecting the merits of a case over which it has no jurisdiction, and no court can, without a plain and inexcusable breach of duty, violate that principle. No one thing in...