Territory v. Chicago, R.I. & P. Ry. Co.
| Decision Date | 29 June 1894 |
| Citation | 39 P. 389,2 Okla. 108 |
| Parties | TERRITORY ex rel. GALBRAITH, Attorney General, v. CHICAGO, R.I. & P. RY. CO. |
| Court | Oklahoma Supreme Court |
Mandamus on the relation of C. A. Galbraith, attorney general plaintiff, against the Chicago, Rock Island & Pacific Railway Company, defendant. Dismissed.
Issues in mandamus being made upon which the parties have a right to a jury trial, and no means being provided by the legislature by which the supreme court can secure a jury, the cause must come to an end.
Curran & Campfield, Caldwell & Whittinghill, and T. W. Wampler, for petitioner.
M. A Low, John I. Dille, and Harper S. Cunningham, for defendant.
This case, being a proceeding for mandamus in this court, with the history of which we are all somewhat familiar, is now before this court upon the motion of the relator for a commissioner to take testimony, and upon the objection of the respondent to the appointment of such commissioner, and the application of the respondent for a trial by jury. If the question as to whether or not the parties are entitled to a jury is settled in the affirmative, it follows that this court has not the power to appoint a commissioner to take testimony, over the objection of the party demanding the right of trial by jury and the decision upon the question of a right to a trial by jury will settle the other proposition involved. In mandamus proceedings it is found by an examination of the authorities and it seems to be well settled, that such an action; was a common-law action; and in some states of the Union, under Codes similar to ours, it is held that, where an issue of fact is raised on the pleadings, either party may have a trial by jury. The supreme court of Kansas, so fast as we have been able to determine by an examination of the authorities, has not passed upon this question directly. This writ anciently was a high prerogative writ, but in the states of this Union, and under the decision of the supreme court of the United States, this action has lost to a considerable extent its ancient characteristics. It is not now considered, in most of states of the Union, as anything more than a civil action; and in the procedure governing the trial of causes such procedure is assimilated, as nearly as possible, to the Codes of the several states, and is treated as a civil provision-as an ordinary civil action-in most of the states. The only features now possessed by this proceeding in common with those originally possessed are the features which grant to the court the discretionary power of issuing the alternative or peremptory writ of mandamus and bringing the parties into court. In the case under consideration, an issue of fact has been squarely joined by the return to the alternative writ. As we view the authorities, such issue of fact can be tried by a jury, and, under most of the Codes, the states which have passed upon this question--in fact, I recall but one now--hold that a trial by jury is a matter of right, rather than discretionary upon the part of the court. But this court, in passing upon the question presented to it on yesterday, as to whether or not the court would consider this a case which should be governed by the rules of pleading as laid down by the Code, held to the view that this is such an action as that where issues were joined in accordance with the provisions of the Code relating to the trial of the civil actions in the district court; and in that decision this court practically held that, in mandamus proceedings, as well as in any other proceedings of a civil nature, the rules of practice, as laid down for the trial of causes in the district court, should govern in this court in such cases. Therefore we are of the opinion that a trial by jury may be had in this cause; that the parties are entitled, as a matter of right, to a trial by jury in mandamus proceedings, where an issue of fact is joined.
This leads to the next proposition, as to whether or not a trial by jury can be had in the supreme court of this territory. Upon that question the court has concluded that, inasmuch as no machinery has been provided for the calling of a jury in the supreme court, it would be the exercise of doubtful power for this court to prescribe rules and regulations and a line of procedure for the calling of a jury in the supreme court and the trial of causes in such court by a jury, and we have agreed that no juries will be called for the trial of causes in the supreme court. In considering this...
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