Robertson v. State ex rel. Smith
| Decision Date | 11 March 1887 |
| Docket Number | 13,565 |
| Citation | 10 N.E. 643,109 Ind. 151 |
| Parties | Robertson v. The State, ex rel. Smith |
| Court | Indiana Supreme Court |
Original Opinion of February 23, 1887, Reported at: 109 Ind 79.
OPINION
It is not necessary to again discuss the questions considered in our former opinion, but there is one point made in the brief on the petition for a rehearing, which, perhaps, requires notice. It is said: "The injunction was granted by a judge in vacation whose jurisdiction depended not upon the summons in the case, but on the notice and service thereof, which notice and service thereof are not questioned." From this premise, counsel reach the conclusion that jurisdiction could not be challenged by a verified answer. This is a novel doctrine, for it impliedly assumes that the powers of a judge in vacation are greater than those of a court in term; whereas, as is well known, the powers of a court in term are very much greater than those of a judge in vacation. It surely needs no argument to prove that a judge in vacation can not have a greater jurisdiction than a court in term. The counsel's position is untenable for another reason, and that is this: It tacitly assumes that the plea did not fully challenge the jurisdiction of the court, when, in fact, the plea did deny the jurisdiction of the Marion Circuit Court to proceed at all in the case. The injunction, as counsel asserted over and over again in argument, was a mere ancillary proceeding, and, certainly, where there is no jurisdiction of the person as to the principal cause of action, there can be none over a mere auxiliary proceeding wholly dependent upon the principal cause. There is yet even a stronger reason against the position of counsel, for, as all the members of the court agree, there was no jurisdiction of the subject-matter of the action so far as it sought an injunction, so that acts done in that branch of the case by the relator could not possibly confer jurisdiction of the person of the appellant.
The question of jurisdiction was the first question for decision, and of this question there were two branches: First. Whether the court had jurisdiction of the subject-matter. Second. Whether the court had jurisdiction of the person.
The formal grounds of the judgment of reversal were, that the action was not brought in the proper county, and that the circuit court had no jurisdiction to issue the injunction, and upon those points all of the judges agreed. Upon the other branch of the question of jurisdiction, that is, jurisdiction of the subject-matter, there was a diversity of opinion. The majority agreed in holding that in this case the court had no jurisdiction of the subject-matter; but, as to the line of reasoning by which that conclusion was reached, they did not in all things agree. All of the members of the court regarded the question of the jurisdiction of the subject-matter as before the court for decision, and, as two of the judges were of the opinion that the court had jurisdiction, while the other judges thought otherwise, it was deemed proper by the court that each of the judges should submit his individual views upon that branch of the question. Judges Mitchell and Howk expressed opinions upon the question as to the rights of the parties respecting the office in controversy, because they regarded a decision of that question as essential to a decision of the question of jurisdiction; but the majority declined to express any opinion upon that question, for, in their judgment, their power was exhausted and their duty done when they affirmed that there was no jurisdiction.
Petition overruled.
Individual Opinion.
Niblack, J.--As the petition for a rehearing brings this case again before us for such further consideration as we may feel it to be our duty to extend to it, I avail myself of the opportunity of adding something to the individual views I expressed at the former hearing. I am induced to adopt this course partly on account of the prominent relations which the cause has been made to sustain towards current public affairs in the State, and partly on account of the misapprehension which seemingly exists in the minds of many persons as to the reasons which restrained a majority of the members of this court from the expression of any opinion upon the actual merits of the controversy which caused the institution of this suit.
In the views which I formerly submitted I discussed and expressed an opinion upon some matters which were only incidental and collateral to the question of jurisdiction I was then considering. Such merely incidental and collateral matters were referred to and commented upon as illustrative of the peculiar nature of the contest then being waged between the appellant and the relator, Smith, and as, at least, indirectly sustaining my position that the courts of the State were utterly without jurisdiction over the subject-matter of that contest, and for no other purpose.
The main features of the contest which followed the Presidential election, held in the year 1876, have become a matter of history, and are, hence, within the reach, and in consequence presumably within the common knowledge, of all. The Electoral Commission created to assist in the settlement of that contest was not in any proper view a judicial tribunal. Its duties were kindred to those of a referee in a judicial proceeding. It was authorized to examine and to report to Congress upon certain questions referred to it, without trenching upon the right of the two Houses of Congress to ultimately decide who, if any one, had been elected either President or Vice-President of the United States. It was organized upon the accepted theory that the final decision as to who had been so elected rested ultimately with Congress, and could not, under the Constitution of the United States, be delegated to any other tribunal, and that, consequently, whatever such electoral commission might report, or recommend, would be in its nature advisory only.
Congress acted upon that theory when the commission reported, and the evidence of title which Mr. Hayes thereafter received was made to rest, and still rests, upon the subsequent action of Congress, which in its effect declared him to have been duly elected. During the continuance of the contest, some of the friends of Mr. Tilden, becoming discouraged with the prospect of obtaining a favorable decision otherwise in his behalf inaugurated a movement to have Congress pass an act conferring jurisdiction over all...
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