State ex rel. Walton v. Christmas

• Decision Date: 08 May 1935
• Docket Number: 1936
• Citation: 48 Wyo. 239,44 P.2d 905
• Parties: STATE EX REL. WALTON v. CHRISTMAS
• Court: Wyoming Supreme Court

44 P.2d 905

48 Wyo. 239

STATE EX REL. WALTON v. CHRISTMAS

No. 1936

Supreme Court of Wyoming

May 8, 1935

ORIGINAL application by the State, on the relation of Reuel Walton, against H. R. Christmas, for leave to file petition in quo warranto.

Application denied.

In support of the application there was a brief by T. S Taliaferro, Jr., of Rock Springs, Wyoming, and oral argument by Mr. Taliaferro and Ray E. Lee, Attorney General, of Cheyenne.

We understood from the argument of counsel for respondent, that it was conceded that a district judge is a state officer that the Supreme Court has original jurisdiction to hear this case. But at the same time it was contended that the district court has concurrent jurisdiction; that the case is not "publici juris"; that no controlling necessity is suggested. We feel that the Bill of Complaint meets the requirements of court rule 28, and alleges facts sufficient to confer original jurisdiction on this court. Long prior to the adoption of the Constitution, the statute law of Wyoming was the same as is now set forth in Section 89-1204, W. R. S. 1931. The ratification of the Constitution did not change the right of "Trial by Jury." The Kansas Code is identical with the Wyoming Code. The Kansas Constitution provides that the right of trial by jury shall be inviolate. Wheeler v. Caldwell, (Kans.) 75 P. 1031; Lavey v. Doig, (Fla.) 6 So. 260. In People v. Burnham, (Ida.) 207 P. 589, the court held that "trial by jury" in "quo warranto" was not guaranteed by the Constitution. See also Taliaferro v. Lee, (Ala.) 13 So. 125. The New Mexico Constitution on the subject of original jurisdiction differs from the Wyoming Constitution. State ex rel. Owen v. Van Stone, (N. M.) 121 P. 611. The case of State v. Leib, (N. M.) 125 P. 601, apparently overruled the Van Stone case. Section 10, Article 5 of the Wyoming Constitution does not confer original jurisdiction in "quo warranto" against state officers, boards and commissions. Certainly it is not intended that district courts should exercise original jurisdiction over justices of the Supreme Court. We claim that original jurisdiction as to state officers is in the Supreme Court. Holding fast to our contention that the Constitution gives the district court "original jurisdiction" only in "causes at law and in equity," and in all criminal matters, matters of probate and insolvency, and of such special cases and proceedings, as are not otherwise provided for, let us consider constitutions of other states, cited by the Supreme Court of New Mexico in State v. Van Stone. They are discussed in the following cases: People v. District Court, (Colo.) 86 P. 87; The Homesteaders v. McCombs, (Okla.) 103 P. 691; Jones v. Reed, (Wash.) 27 P. 1067; State v. Jones, (Ariz.) 137 P. 546. We find nothing in the history of the Wyoming Constitution conferring original jurisdiction upon district courts in questions of quo warranto or mandamus authorizing interference with superior public officials, either of the Supreme Court or in other departments of the state government. The maxim "Expressio unius est exclusio alterius" applies. Black on Interpretation of Laws, 219, 221. Where a special mode of exercising power is prescribed, it will be regarded as excluding by implication the right to resort to any other mode of executing the power or of enforcing the right. It is believed that that principle applies in the present case, and when the constitution states that the Supreme Court shall have "original jurisdiction" as to all "state officers," all other courts are excluded.

In opposition to the application, there was a brief by W. A. Muir and L. H. Brown, both of Rock Springs, and J. A. Greenwood, of Cheyenne, and oral argument by Mr. Greenwood.

The application should be denied upon the authority of Article V, Section 3. The constitutional provisions relating to quo warranto are not self-executing. Midwest Hotel Company v. Board, 39 Wyo. 461. The statutes on the subject are sections 89-4601-4634. Original jurisdiction of Supreme Court in quo warranto is concurrent and not exclusive. Article V, Section 3, Constitution, also Section 10; 51 C. J. 333; 22 R. C. L. 684-685; A. & E. C., Vol. 19, p. 664. We find the point clearly discussed in State v. Van Stone, 121 P. 611, where it was held that the original jurisdiction of the Supreme Court was not exclusive, because not made so by the constitution. In State ex rel. Bullard v. Jones, 137 P. 544, it was held under a similar constitutional provision that the original jurisdiction of the Supreme Court was concurrent, original jurisdiction and not exclusive. Jarman v. Mason, 229 P. 459; also State ex rel. Attorney General v. Cobb, 104 P. 361.

KIMBALL, Chief Justice. BLUME and RINER, JJ., concur.

OPINION

KIMBALL, Chief Justice.

A petition for quo warranto under article 46 of chapter 89, R. S. 1931, by the state on the relation of Reuel Walton, plaintiff, against H. R. Christmas, defendant, has been presented with an application for leave to file it for the purpose of instituting an original action in this court. The parties will be called plaintiff, relator and defendant, as in the tendered petition.

The relator and the defendant were opposing candidates at the last election for the office of district judge of the third judicial district. The votes as officially canvassed showed a majority for defendant who was given the certificate of election and is now holding the office. The action in effect would be a contest of the election on the claim of relator that he received a majority of the legal votes. The prayer is that we decree that defendant is not entitled to the office of district judge, and that he be ousted therefrom, and that the relator be adjudged entitled to the office.

The application for leave to file the petition was set down for hearing under § 89-4610. In opposition to the application the defendant contends that our jurisdiction to entertain the case as an original proceeding is concurrent with the jurisdiction of the district court, and that the plaintiff has failed to set forth the grounds or reasons why the petition should not be filed in the district court. He alleges that the determination of the issues of fact in the case will require the taking of a large volume of evidence.

The constitution provides that: "The Supreme Court shall have original jurisdiction in quo warranto and mandamus as to all state officers, * * *." Art. 5, § 3. "The district court shall have original jurisdiction of all causes at law and in equity * * * and of such special cases and proceedings as are not otherwise provided for. The district court shall also have original jurisdiction in all cases and of all proceedings in which jurisdiction shall not have been by law vested exclusively in some other court; * * *. Said courts and their judges shall have power to issue writs of mandamus, quo warranto, * * *." Art. 5, § 10.

It may be doubted that a district judge is a "state officer" within the meaning of § 3 of article 5 of the constitution. See: State ex rel. Hamilton v. Grant, 14 Wyo. 41, 81 P. 795, 82 P. 2; State v. Hurn, 106 Wash. 362, 180 P. 400; State v. Hoffman, 313 Mo. 667, 288 S.W. 16. The question was raised but not decided In Re Fourth Judicial District, 4 Wyo. 133, 32 P. 850. It need not be decided now, as it is not pressed, and there are other reasons impelling us to refuse to entertain this proposed action as an original proceeding in this court.

In the language of § 3, supra, giving this court jurisdiction in quo warranto as to state officers there is nothing to indicate that the jurisdiction should be exclusive. We may concede that sometimes a constitutional grant of jurisdiction to one tribunal may by implication forbid exercise of the same jurisdiction by another tribunal. By § 10, however, the district court not only is created as the court of general jurisdiction in all causes at law and equity with express authority to issue writs of quo warranto, but has "original jurisdiction in all cases and of all proceedings in which jurisdiction shall not have been by law vested exclusively in some other court."

The view that our jurisdiction in mandamus and quo warranto as to state officers is not exclusive has been accepted from a very early date in our state's history, as shown by rule 28 (42 Wyo. 511, 537) which provides that:

"In any application made to the court for a writ of habeas corpus, mandamus, quo warranto, or for any prerogative writ to be issued in the exercise of its original jurisdiction and for which an application might have been lawfully made to some other court in the first instance, the petition shall, in addition to the necessary matter requisite by the rules of law to support the application, also set forth the circumstances which, in the opinion of the applicant, render it necessary or proper that the writ should issue originally from this court, and not from such other court, and the sufficiency or insufficiency of such circumstances so set forth in that behalf will be determined by the court in awarding or refusing the application."

This rule, of course, assumes that the constitutional grant of original jurisdiction to this court in quo warranto as to all state officers is not exclusive. The rule, with others adopted at the same time (Feb. 20, 1891), was drafted and recommended by a committee composed of Willis Van Devanter, Charles N. Potter and A. C. Campbell. Two members of the committee, and Justice Conaway of the court, had recently served as members of the judiciary committee in the convention that framed the constitution. It is needless to say that an interpretation by these men of a section of the article on the judiciary is entitled to great weight.

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