State v. Holmes

• Decision Date: 26 June 1895
• Citation: 12 Wash. 169,40 P. 735
• Parties: STATE v. HOLMES.
• Court: Washington Supreme Court

40 P. 735

12 Wash. 169

STATE v. HOLMES.

Supreme Court of Washington

June 26, 1895

Appeal from superior court, King county; James Z. Moore, Judge.

William Holmes was convicted of murder, and appeals. Affirmed.

Melvin G. Winstock and Frank B. Ingersoll, for appellant.

A. W Hastie, for respondent.

DUNBAR J.

This was an information against the defendant, charging him with murder in the first degree. Upon the trial a verdict was rendered in accordance with the charge. Judgment was entered upon the verdict, from which judgment an appeal is taken seeking a reversal upon several errors assigned.

The first error assigned is a want of jurisdiction in the trial judge. It is conceded that Judge J. Z. Moore, who tried this case, is not one of the superior judges elected for the county of King, where the cause was tried, and which was the home of the defendant. There is nothing in the record in this cause to show in what manner Judge Moore was authorized to hold court in King county at the time of the trial of this case, except a nunc pro tunc order made by Judge Humes on the 26th of March, 1894, to the effect that an order be entered on the records of March 3, 1894 (a date prior to the trial of the cause), setting out that "the Honorable James Z Moore, judge of the superior court of the state of Washington, for Spokane county, is requested to sit as judge of this court, and to hold a session thereof commencing March 12, 1894, and to transact such business as may come before him as such judge in the criminal department thereof." There appear in the record affidavits of Richard Osborn and J. W. Langley, who are the two other superior judges of King county, to the effect that they did not at any time join in a request to Judge Moore to hold said term of court. Upon this state of affairs, it is contended by the appellant that the acts of Judge Moore in the premises were without jurisdiction, and therefore void.

Section 7 of article 4 of the constitution provides that "the judge of any superior court may hold a superior court in any county at the request of the judge of the superior court thereof, and upon the request of the governor it shall be his duty to do so." It is the contention of the appellant that this provision of the constitution is not self-executing, but that all the authority which can be conferred upon a judge who resides out of the county where the cause is tried is conferred by sections 1 and 2 of chapter 43 of the Laws of 1893. Those sections provide, in substance, that whenever a judge of the superior court of any county, or a majority of such judges in any county in which there is more than one judge of said court, shall request the governor of the state to direct a judge of the superior court of any other county to hold a session of the superior court in the county mentioned, after the governor shall have so requested him, it shall be the duty of the judge to hold such session; or that, whenever a like request shall be addressed by the judge or by a majority of the judges (if there be more than one) of the superior court of any county to the superior judge of any other county, the judge addressed is empowered if he deem it consistent with the state of judicial business in his own county, to comply with such request, to hold the session, etc. We are of the opinion that the provision of the constitution empowering the judge of any superior court to hold court at the request of the superior judge of any county is self-executing. This provision not being a limitation, but being in the nature of a legislative enactment, it follows that, if the enactment could be sustained and made self-executing if it had been a statutory enactment, it is self-executing as a constitutional enactment. There can be no question of the validity of the action of the courts under such statutory enactments where no penalty is provided in case of a failure of the court to comply with the requirements of the law. In fact, it is not common for laws of this kind, conferring jurisdiction upon courts, to provide penalties for the nonperformance of the duties imposed. The presumption is that the judge will assume the jurisdiction which the law gives him, and, if he willfully violates his duties under the law, the remedy is by impeachment. Indeed, the statute upon which the appellant relies, and the provisions of which he contends must have been complied with to give the court jurisdiction, and which he admits would have given the invited judge jurisdiction, is a common example of this character of legislation concerning courts; for while, as in the constitutional enactment, it is made the duty of the judge to whom the request is addressed by the majority of the judges in the county to hold said court, and it is also made his duty to hold said court when directed so to do by the governor, it nowhere imposes any penalty for his refusal so to do, and provides no means of compelling him to hold said court. The logic of the appellant, then, would abrogate both constitutional and statutory enactments.

It follows that, the superior courts being courts of general jurisdiction, it will be presumed that the court in each instance acted within its jurisdiction, in the absence of an affirmative showing to the contrary. The acts of the judge were of an official nature, and the rule of construction is found in the maxim, "Omnia praesumuntur rite et solemniter esse acta donec probetur in contrarium." It will be presumed, said Judge Story in Bank v. Dandridge, 12 Wheat 64, that a man acting in a public office has been rightly appointed; that entries found upon public books have been made by the proper officer; even that the same presumptions apply to corporations; and that persons acting publicly as officers of the corporations are to be presumed rightfully in office; and that the acts done by the corporations, which presuppose the existence of other acts to make them legally operative, are presumptive proofs of the latter. How much more strongly, then, will the maxim apply to the acts of a court of general jurisdiction where the act done by the court presupposes the existence of other acts to make them legal, presuming, for the sake of the argument, that the provisions of the statute are mandatory. It will be observed that neither the constitution nor the statutes in this state make provision for the spreading upon the record of the fact that the visiting judge has been called to hold court either by the governor or by the judges in the county where the term of court is held.

Most of the cases cited by the appellant are cases where the statute requires a record to be made of the request or acceptance. The first case cited, viz. Gresham v. Ewell (Va.) 6 S E. 700, held, it is true, that the action of the invited judge was void in a case where the record did not show that an order had been entered of record calling the judge according to the provisions of the statute. But in that state the statute provided that it must be entered of record, and the case was decided especially upon the provision of the statute requiring the entry upon the record. The court, among other things, in the decision of the case, said: "It is only when such entry is made that the law gives the authority. The jurisdiction and authority from any other source is merely self-assumed. The legislature, doubtless, had reasons satisfactory to that body when this provision was inserted in the law, for the provision 'and it be so entered of record' is an amendment to the former law." So that it seems that, if the provision "and it be so entered of record" had not appeared in the statute of that state, the decision in the case would have been in favor of the jurisdiction of the acting judge. Nelms v. Vaughan (Va.) 5 S. E. 704, seems to us to be opposed to the contention of appellant. There it was decided that under an act which provides that the returns of county elections shall be subject to the inquiry of the county court, upon the complaint of qualified voters, to which two shall take and subscribe an oath, the omission to subscribe as required does not deprive the court of jurisdiction, such provision not being essential to the validity of the proceedings unless so declared by statute; and the whole tenor of the decision is to the effect that a statute like ours is directory, and not mandatory. The court in that case says: "We are authorized to regard the directions as to form as merely directory, as there is no intimation that they must be done or all will be vitiated, or else no proceedings shall be further had." And it quotes Justice Taunton in Pearse v. Morrice, 2 Adol. & E. 94, where he says: "I understand the distinction between directory and imperative statutes to be that a clause is directory when the provisions contain mere matter of deduction, and nothing more; but not so when they are followed by such words as are used here, viz. that anything done contrary to such provisions shall be null and void to all intents. These words give a direct, positive, and absolute prohibition." Continuing, the court says: "A statute directing the mode of proceeding by public officers is to be deemed directory, and a precise compliance is not to be deemed essential to the validity of the proceedings, unless so declared by statute,"-citing People v. Cook, 8 N. Y. 87. Many other cases are cited in this opinion sustaining the view that such statutes as ours are purely directory. The citation of this case by the appellant must have been a mistake. American Loan & Trust Co. v. East & West R. Co. (Cir. Ct. N.D.Ga.) 40 F. 182, decides, upon a direct application challenging the jurisdiction of the judge who tried the cause, by petition in advance of the trial, that the judge had no jurisdiction. But the...