State ex rel. King v. Hall

• Decision Date: 18 March 1896
• Citation: 66 N.W. 642,47 Neb. 579
• Parties: STATE EX REL. KING ET AL. v. HALL, JUDGE.
• Court: Nebraska Supreme Court

47 Neb. 579

66 N.W. 642

STATE EX REL. KING ET AL.

v.HALL, JUDGE.

Supreme Court of Nebraska.

March 18, 1896.

Syllabus by the Court.

1. The original jurisdiction of this court is, by section 2, art. 6, of the constitution, restricted to cases relating to the revenue, civil cases to which the state is a party, mandamus, quo warranto and habeas corpus.

2. It is not within the power of the legislature to confer upon this court original jurisdiction over subjects not enumerated in the constitution. Miller v. Wheeler, 51 N. W. 137, 33 Neb. 765.

3. The constitution has not conferred upon this court original jurisdiction to award a writ of prohibition as an independent remedy.

4. Whether a writ of prohibition may be allowed by this court in aid of its appellate jurisdiction, quære.

Application by the state, on the relation of Shepherd H. King and others, for a writ of prohibition against Charles L. Hall, judge of the district court. Writ denied.J. R. Webster, Geo. A. Adams, and Fred Shepherd, for relators.

Chas. L. Hall, in pro. per.

L. C. Burr and A. S. Tibbets, for respondent.

POST, C. J.

A rule was, upon the sworn information of the relators, allowed against the respondent, one of the judges of the district court for Lancaster county, to show cause why a writ of prohibition should not issue from this court, restraining him, the said respondent, from making certain orders in the case of William L. Morrison v. The Lincoln Savings Bank & Safe-Deposit Company, pending in said court. The ground of the application, briefly stated, is that the respondent is one of the subscribers for the original stock of said bank, which is now insolvent; that, of the amount so subscribed, there has been paid 10 per cent., and no more, leaving the respondent liable to the creditors of the bank for 90 per cent. of his aforesaid subscription, by reason of which he is disqualified to act in said case, or to make any orders therein affecting the rights of the creditors, but notwithstanding said fact the respondent did on the 12th day of January, 1896, while presiding over one of the divisionsof the district court for said Lancaster county, assume to appoint one J. E. Hill as receiver to wind up the business and affairs of said bank; that a motion was subsequently made by the relators for the discharge of said receiver, and for the appointment of a more suitable person to execute the said trust; and that the respondent, although disqualified to act in the premises, by reason of the facts herein stated, is about to, and will, unless restrained by this court, pass upon and decide said motion, etc. The respondent, in obedience to the nisi order, has submitted a statement under oath, denying seriatim the allegations of the information, and unites with the relator in affirming the jurisdiction of this court to entertain the proceeding, notwithstanding our intimation to the contrary. We appreciate the delicacy of the position in which Judge Hall is placed by this proceeding, and can but commend his course in insisting upon a determination of the merits of the controversy, although we must decline, for reasons hereafter stated, to entertain that question.

Owing to the fact, already appearing, that the parties hereto agree in asserting the jurisdiction of this court over the subject of the controversy, we have been deprived of the assistance which would, under the circumstances, have been expected from counsel, in the investigation of so important a subject. We have, however, devoted to an examination of that question the time at our disposal, and which has resulted in a conclusion adverse to the contention in favor of our jurisdiction. The development of the remedy by means of the writ of prohibition in the court of queen's bench, and also in this country, is both entertaining and profitable, as a field for study. But that subject is foreign to the present inquiry, since the question here involved is one of constitutional construction, and depends upon the interpretation given to the express provisions of that instrument. This court, except in the exercise of its appellate jurisdiction, is one of limited and enumerated powers. It shall have jurisdiction, says the constitution, “in cases relating to the revenue, civil cases in which the state shall be a party, mandamus, quo warranto, habeas corpus and such appellate jurisdiction as may be provided by law.” Const. art. 6, § 2. That provision, it was held in Miller v. Wheeler, 33 Neb. 765, 51 N. W. 137, is a grant of power,...