State v. Helena Waterworks Co.
| Decision Date | 11 April 1911 |
| Citation | 115 P. 200,43 Mont. 169 |
| Parties | STATE ex rel. CITY OF HELENA v. HELENA WATERWORKS CO. et al. |
| Court | Montana Supreme Court |
Original proceeding by the State, on the relation of the City of Helena, against the Helena Waterworks Company and others for an injunction. Dismissed.
Edward Horsky, for relator. Gunn & Hall, J. A. Walsh, and W. S Hartman, for respondents.
Application for an injunction. The purpose sought by this application is to have this court, in the exercise of original jurisdiction compel the several defendants to dismiss certain actions brought by them and now pending against the relator, the city of Helena, and to refrain from instituting others of a similar character hereafter. The actions described in the petition are: One instituted by the defendant Charles E Bockus, as receiver of the Helena Waterworks Company, in the Circuit Court of the United States for the District of Montana, to enjoin the issuance and sale of bonds by the city to procure funds for the purpose of installing its own water supply system; a second, brought by the defendants Lokowich, Stabler, the two Baums, Fisher, Davies, Dallas, Thompson, Beatty, and Filson, in the district court of the Ninth judicial district of Montana, in and for Broadwater county, to restrain the city from diverting from Beaver creek, in said county, any of the waters flowing therein and conveying it to the city, the same being outside of the watershed drained by the stream; and a third, brought in the same court for the same purpose as the foregoing, by the defendant Custer Mines Consolidated Company. The defendants Gunn, Hall, Hartman, and Walsh are the attorneys, each representing some one or more of the plaintiffs in these several actions. It is alleged, in substance, that they, conspiring together with the said Bockus and others, have brought and procured to be brought all of the said actions, well knowing that the alleged rights involved therein have heretofore been fully adjudicated by the courts of Montana, and that the said actions are wholly without merit, for the sole purpose of embarrassing the city in making a sale of its bonds, and to obstruct it in the prosecution of its purpose to install its water system to supply its inhabitants with water. As a reason why this court should assume original jurisdiction, it is alleged that, since an appeal would lie from the decision of any action or proceeding brought in a district court to obtain relief, such decision would not be effective because of the delay necessarily incident to the appeal; it being necessary and desirable that the sale of bonds now advertised should be consummated.
The defendants, in response to an order to show cause, made upon the presentation of the application, filed their answers, reserving, however, the right to question the power of this court to grant the relief prayed for. The cause was then submitted for final judgment, upon the pleadings, a transcript of the testimony of several witnesses in the form of depositions taken in the action brought by Lokowich and his codefendants, and other documentary evidence. The controlling question presented for decision arises upon the objection of the defendants to the jurisdiction of this court. Even without objection, whatever may be the merits of a controversy from a judicial point of view, this court may not assume original jurisdiction in any case unless authority to do so is found in the Constitution.
This court was created by the Constitution. That instrument is the charter of its power. The assumption by it to exercise a power not expressly granted or necessarily implied would be a usurpation. On the other hand, a refusal to exercise any power granted, when properly invoked, would be a clear violation of its duty. When we turn to the Constitution to ascertain the powers conferred, it is apparent that the purpose of the convention that formulated it was to constitute the court exclusively a court of review, with all the auxiliary powers necessary to the exercise of this jurisdiction, except in so far as it expressly declared otherwise. The provisions defining and limiting its powers are found in sections 2 and 3 of article 8, as follows:
The different justices are in the latter part of section 3 clothed with power to issue, hear, and determine writs of habeas corpus, and also writs of certiorari to review proceedings for contempt in the district courts; but these powers are conferred upon the justices individually. Consideration of them is not pertinent here. In section 2 the grant is of "appellate jurisdiction only," "except as otherwise provided," and "a general supervisory control over all inferior courts." The appellate jurisdiction here granted is properly invoked by appeal only, or perhaps by writ of error, and is confined in its exercise to a review of cases which have been decided by the district courts. The supervisory power--which is also appellate in its nature--was designed to control summarily the course of litigation in the inferior courts and prevent an injustice being done through a mistake of law or a willful disregard of it when there is no appeal from the erroneous order, or the relief obtained through the appeal would be inadequate. Its purpose is pointed out in State ex rel. Whiteside v. District Court, 24 Mont. 539, 63 P. 395. Its appropriate use is illustrated by the following cases: State ex rel. Anaconda G. M. Co. v. District Court, 25 Mont. 504, 65 P. 1020; State ex rel. Shores v. District Court, 27 Mont. 349, 71 P. 159; State ex rel. Sutton v. District Court, 27 Mont. 128, 69 P. 988; State ex rel. Boston & Mont. C. C. & S. Min. Co. v. District Court, 30 Mont. 96, 75 P. 956; State ex rel. Boston & Mont. C. C. & S. Min. Co. v. District Court, 30 Mont. 206, 76 P. 206; State ex rel. Clark v. District Court, 30 Mont. 442, 76 P. 1005. It is not necessary to consider it further here.
By section 3 the jurisdiction granted under section 2 is extended to "all cases at law and in equity." The rule of interpretation to be applied in order to ascertain the limits of this jurisdiction is embodied in the maxim "Inclusio unius est exclusio alterius"; for in the Declaration of Rights this rule of interpretation is declared as follows: "The provisions of this Constitution are mandatory and prohibitory, unless by express words they are declared to be otherwise." Article 3, § 29. In section 2, above, the word "only" is exclusive. It signifies "no other than," as applied to the objects with reference to which it is used. Hence it excludes the notion of original jurisdiction in any case, except so far as it is conferred by some other provision. The word "all," used in section 3, is inclusive, and signifies "the whole number of" with reference to "cases at law and in equity." Thus again the affirmative words in this section operate to exclude the notion of original jurisdiction over any case which falls in the...
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