State ex rel. Moore v. Archibald

• Decision Date: 20 February 1896
• Court: North Dakota Supreme Court

66 N.W. 234

5 N.D. 359

STATE ex rel D. S. MOORE v. O. W. ARCHIBALD

Supreme Court of North Dakota

February 20, 1896

Original application on the relation of Dwight S. Moore against O. Wellington Archibald for a writ of mandamus.

Peremptory writ awarded.

Peremptory writ issued.

Edgar W. Camp and Glaspell & Ellsworth, for petitioner.

F Baldwin and Newman, Spalding & Phelps, in opposition.

CORLISS J. BARTHOLOMEN, J. (concurring.)

OPINION

CORLISS, J.

Application is made to this court to put forth its original jurisdiction by issuing the writ of mandamus to compel the defendant to turn over to the relator the possession of the office of superintendent of the State Hospital for the Insane. The defendant was appointed to such office by the trustees of that institution (which, for convenience, will be designated in this opinion as the "asylum") on the day of January, 1896; and before the time (one year) for which defendant was appointed had expired, he was removed from such office by a majority vote of the board of trustees, at a meeting called for that purpose, and at which all of the trustees were present; and by the same vote the relator was appointed superintendent in his place.

At the outset, this court is called upon to determine the question of its original jurisdiction in issuing the perogative writs named in the constitution, and the scope of that jurisdiction if such jurisdiction exists. The task is at once delicate and difficult. We are to trace the line that marks the boundary of our power, as the people have drawn it in the organic law, careful not to usurp unwarranted jurisdiction, and yet as careful not to withhold the exercise of jurisdiction conferred. That we have power to issue these original writs in some cases, not merely in aid of jurisdiction, but to found jurisdiction, we entertain no doubt. We so held in State v. Nelson Co., 1 N.D. 88-101, 45 N.W. 33; and while the question was not discussed by counsel in that case, it was thoroughly gone into by this court, and the conclusion there reached was the result of a careful examination of the same arguments and cases which have been presented in this cause. However, while we feel bound by that decision, we would reach the same conclusion were the question open to debate. The grant of power to issue the specified writs to initiate jurisdiction, at least in some exigencies, is quite apparent.

The constitution, so far as it relates to this subject, provides as follows:

"Sec. 86. The Supreme Court, except as otherwise provided in this constitution, shall have appellate jurisdiction only, which shall be co-extensive with the state and shall have a general superintending control over all inferior courts under such regulations and limitations as may be prescribed by law.

"Sec. 87. It shall have power to issue writs of habeas corpus, mandamus, quo warranto, certiorari, injunction, and such other original and remedial writs as may be necessary to the proper exercise of its jurisdiction, and shall have authority to hear and determine the same; provided, however, that no jury trials shall be allowed in said Supreme Court, but in proper cases questions of fact may be sent by said court to a District Court for trial."

These provisions, as we construe them, vest in this court--First, appellate jurisdiction; second, general superintending control over inferior courts; third, power to issue the writs specified, not only in furtherance of other jurisdiction, but also in the exercise of original jurisdiction; fourth, authority to issue such other original and remedial writs as may be necessary to the proper exercise of the jurisdiction vested in this court. This last grant was unnecessary, as we shall see, and was doubtless inserted for greater certainty. These ancillary writs are to be employed in furtherance of any jurisdiction possessed by this court, whether appellate, original, or superintending. If the writs specifically named are not to be issued by this court in the exercise of original jurisdiction, then two of them cannot be issued by this court at all, as two of them are not such writs as can be employed in aid of either the appellate jurisdiction or the power of superintending control conferred upon this court. This fact is fatal to the construction that the writs specified, as well as those included in the clause, "such other and remedial writs," etc., are to be resorted to only as the means of carrying into effect the appellate and superintending powers of this court. The writs particularly named constitute a class by themselves, and are to be issued independently of any other jurisdiction possessed by the court. It is true that some of them may be issued in aid of the other jurisdiction vested in this court. The other and unenumerated writs belong to a separate class, being only such writs as are necessary to be used in the aid of jurisdiction, and these are to be employed by this court solely for that purpose. They are instrumentalities which this court would have had power to use for such purpose had the constitution been silent on the subject. The grant of appellate jurisdiction, and of the power of superintending control, carries with it all writs necessary to the proper exercise of such jurisdiction and of such power. Attorney General v. Chicago & N. W. R. Co., 35 Wis. 425; Marbury v. Madison, 5 U.S. 137, 1 Cranch 137, 2 L.Ed. 60; Wheeler v. Irrigation Co., 9 Colo. 248, 11 P. 103. Said Ryan, C. J., in Attorney General v. Chicago & N. W. R. Co.: "The framers of the constitution appear to have well understood that with appellate jurisdiction the court took all common-law writs applicable to it, and with superintending control all common-law writs applicable to that; and that failing adequate common-law writs, the court might well devise new ones, as Lord Coke tells us, 'as a secret in law.'"

As among the writs specified there are two which cannot be used in aid of either appellate jurisdiction or superintending control, it is demonstrated that the use of the writs particularly specified was not to be restricted, but that they were to be used for all purposes,--as well to take original cognizance of a case as to aid and effectuate other jurisdiction. In U. S. v. Commissioners of Dubuque Co., 1 Morris (Iowa) 42-50, this position was recognized as sound. "The fact that the writ of quo warranto is mentioned (and perhaps some others,) which could only be issued in the exercise of original power, negatives the idea that these writs are only to serve as auxiliaries in the exercise of appellate jurisdiction." Other courts have considered this point as cogent in favor of original jurisdiction. Attorney General v. Blossom, 1 Wis. 317 at 317-327 (top paging, 277-287;) Wheeler v. Irrigation Co., 9 Colo. 248, 11 P. 103. Said Justice Smith, in Attorney General v. Blossom: "Under whatever aspect this court can view this clause of the third section, we are unable to harmonize the nature and office of the class of writs therein named with an intention on the part of the authors of them to render them merely ancillary to the exercise of a power of superintending control over inferior courts lawfully established, or to provide them as mere instrumentalities of appellate jurisdiction." If bound together with other writs which can be used either to initiate jurisdiction or make effectual other jurisdiction, there were found only a single writ, which could be issued for only the former purpose, this would give character to all the rest. But, as a matter of fact, two such writs are there found,--injunction and quo warranto. The grant is unquestionably two-fold with respect to the writs named, which can be used for both purposes. This court is thereby authorized to use them for either purpose,--to found jurisdiction, or in aid of jurisdiction. The writs of habeas corpus and mandamus belong to this class, while the writ of quo warranto, and also the writ of injunction, as used in the Supreme Court, can be employed only to bring the cause into court in the first instance. While the writ of injunction is not an original, but merely a remedial, writ, so far as courts of inferior jurisdiction are concerned, yet, since the decision in Attorney General v. Chicago & N. W. R. Co., 35 Wis. 425, 522, that writ has become, with respect to its use in the Supreme Court, a quasi perogative or original writ. And it was doubtless in this sense that it was employed when inserted in the constitution. It certainly is never used in aid of either appellate jurisdiction or superintending control. We find, therefore, in the constitution, two writs exclusively original in their character, in the position in which they are placed. They were placed there to give this court original jurisdiction, if for any purpose whatever; and we cannot, in effect, expunge them from the constitution by construction. Shall we, then, draw the line at these two writs, and say that this court has not original jurisdiction of the other specified writs with which these two are classed? Such arbitrary separation of the specified writs would be unjustifiable. The clause, "such other original and remedial writs as may be necessary to the proper exercise of its jurisdiction," shows that the writs specified shall, so far as they can be issued in furtherance of jurisdiction conferred, be used for that purpose; while, on the other hand, the fact that two of the writs named can be employed only to initiate jurisdiction, and never in aid of appellate jurisdiction or superintending control, shows, with equal force, that such other of the writs specified as can be used as original writs may be issued by this court to found jurisdiction, as well as for other purposes. To the argument that the words, "such other original...