Ryan v. Weston (In re Weston)

• Decision Date: 18 May 1903
• Citation: 28 Mont. 207
• Parties: In re WESTON. RYAN v. WESTON.
• Court: Montana Supreme Court

28 Mont. 207

In re WESTON. RYAN

v.WESTON.

Supreme Court of Montana.

May 18, 1903.

Election contest by Patrick V. Ryan against John Weston, in which contestant instituted an original proceeding in the Supreme Court under substitute for Senate bill No. 71, eighth legislative assembly, for the appointment of a district judge to temporarily hold court in the district in which the contest was commenced. Proceedings dismissed.

This is an original proceeding instituted in this court by Patrick V. Ryan for the purpose of securing an order designating a judge of some district other than the Second Judicial District, to try and determine the contested election case of Ryan v. Weston. The proceeding is taken under the provisions of an act of the eighth legislative assembly of Montana, designated as “Substitute for Senate Bill No. 71” (unpublished), entitled “An act to provide for the designation and appointment of a district judge to temporarily hold court in another district than his own, and to perform the official duties of the district judge of such district where such judge is biased or prejudiced or for any cause disqualified from performing the same,” which is as follows:

“Be it enacted by the legislative assembly of the state of Montana:

“Section 1. When a party to a civil action or proceeding pending in any district court of the state has reason or cause to believe that such party cannot obtain a fair and impartial trial or determination of such action or proceeding, or of any motion, or application therein made, by reason of the bias or prejudice arising from any cause, of the district judge presiding in the court, or any department thereof where such action, proceeding, motion or application is pending, or where such judge so presiding is from any other cause disqualified from acting therein, such party or his attorney may first request the judge of the district court wherein such action, proceeding, motion or application is pending, to sign a petition addressed to and asking the Supreme Court, without stating grounds therefor, to designate and appoint a judge of some other judicial district of this state to hear, try and determine such action, proceeding, motion or application, and if such petition be signed by the district judge to whom the same is presented the supreme court shall on presentation thereof make an order designating and appointing the judge of some judicial district of this state to hear, try and determine such action, proceeding, motion or application as in this act provided; but if the district judge to whom such petition is presented refuses, or for the period of three days fails, to sign said petition the party on whose behalf the same is presented may by a petition verified by the affidavit of petitioner or his agent or attorney setting forth such bias or prejudice or other grounds of disqualification and the facts upon which the same is based, and the failure or refusal of the judge of the district court or department thereof wherein such action, proceeding, motion or application is pending to sign a petition for the appointment of another judge as herein above provided, petition the Supreme Court, or the justices thereof, to designate and appoint a district judge of some other judicial district of this state to act in such cause, and the Supreme Court, or any two justices thereof, may upon a summary hearing of such petition in court or chambers with any further showing which may be by the court or justices deemed proper, make an order designating and appointing the judge of any judicial district of the state other than that in which such action, proceeding, motion or application is pending, to appear in the district in which such action, proceeding, motion or application is pending, at some proper and convenient time and preside at the trial of such action, or other matter mentioned in the order, and to determine the same, and to do any and all judicial acts necessary, proper and lawful in and about the adjudication and determination thereof, and in and about administering proper relief therein with the same force and effect as if done or ordered by the judge of the district wherein such matter is pending.

“Sec. 2. Upon such order being made and filed in the action or proceeding therein mentioned the judge or judges of the district court wherein such action or proceeding is pending shall not proceed further in such action or proceeding or try or decide the same, nor do any other judicial act therein except upon consent of the parties thereto or their attorneys in writing.

“Sec. 3. The district judge designated and appointed in the order of the Supreme Court in the cases in this act provided shall have full power and authority to preside at the trial of and to try and decide such action, proceeding, motion or application mentioned in such order and to do all acts and things lawful and proper to be done, in court or at chambers, in and about the trial, adjudication, decision and granting and administering all proper and lawful remedies and relief and enforcing the same in said action, proceeding, motion or application mentioned in such order of the Supreme Court as could be done by a judge of the judicial district wherein such action, proceeding, motion or application is pending and upon receiving a copy of such order of the supreme court it shall be the duty of the district judge therein designated and appointed, to appear at the county seat of the county in which such action, proceeding, motion or application is pending, at some proper and convenient time and try the same, but if from any cause he should fail so to do, the Supreme Court may by its order designate another district judge to do the same, who shall be vested with like powers in such action, proceeding, motion or application: provided, that neither party shall petition the Supreme Court more than once in the same action or proceeding to designate and appoint another judge to act therein under the provisions of this act, except in cases where the district judge previously appointed to act therein has failed from any cause so to do.

“Sec. 4. A district judge designated and appointed to hold court in another district pursuant to the provisions of this act shall be paid his actual expenses, to be allowed by the state board of examiners and paid in the same manner as his regular salary.

“Sec. 5. This act shall be in full force and effect from and after its passage and approval.”

Upon the filing of the petition this court, on its own motion, directed an order to be issued to the district judge in whose department the case of Ryan v. Weston is pending, and to the contestee, to show cause, if any they had, why the relief prayed for should not be granted, and directed a hearing upon the return thereof. At the hearing counsel for the district judge and for the contestee filed a motion to dismiss the proceedings, upon the ground that substitute for Senate bill No. 71 is unconstitutional, and that this court has no jurisdiction to entertain the petition or to grant the relief prayed for. Upon this motion the questions involved were argued and submitted for determination.

W. E. Carroll and E. N. Harwood, for contestant.

Carpenter & Carpenter, Toole & Bach, and L. P. Forrestell, for contestee.

HOLLOWAY, J. (after stating the facts).

“The source of all power vested in the Supreme Court is the Constitution of the state, and in it must be found the measure of jurisdiction.” The foregoing succinct statement taken from the brief of the petitioner in the proceedings No. 1,928 (In re Boston & M. Consol. Copper & Silver Min. Co., 72 Pac. 1103), correctly lays the foundation for a determination of the question involved in this controversy. The general rule, repeatedly affirmed and now well understood, that the Constitution of the United States represents a grant of power by the several states and the inhabitants thereof to the general government, while the Constitutions of the several states operate upon the lawmaking branches of those governments as limitations of authority, must be understood and considered in this connection with the qualification which our own state Constitution has attached, that “the provisions of this Constitution are mandatory and prohibitory, unless by express words they are declared to be otherwise.” Section 29, art. 3, Const. Mont. This declaration can have but one meaning-that, with reference to those subjects upon which the Constitution assumes to speak, its declarations shall be conclusive upon the Legislature, and shall prevent the enactment of any law which has for its purpose the extension or limitation of the powers which they confer. An examination of our Constitution discloses an attempt on the part of its framers to define the jurisdiction of this Court, and such definition must be accepted as a final declaration upon that subject: (1) The Supreme Court shall have appellate jurisdiction only, except as otherwise provided by this Constitution (section 2, art. 8), and shall have power to issue, hear, and determine such original and remedial writs as may be necessary or proper to the complete exercise of its appellate jurisdiction (section 3, art. 8). (2) It shall have general supervisory control over all inferior courts, under such regulations and limitations as may be prescribed by law. Section 2, art. 8. (3) It shall have discretionary power to issue, hear, and determine writs of habeas corpus, mandamus, quo warranto, certiorari, prohibition, and injunction. Section 3, art. 8.

For the purpose of this discussion, these are transposed, and will be considered in this order: (1) original jurisdiction; (2) appellate jurisdiction; and (3) supervisory jurisdiction.

1. Original Jurisdiction.

The power to issue, hear, and determine the six original writs enumerated above marks the limit of the original jurisdiction of this court. The scope and purpose of these writs are too well defined and...