Lauritsen v. Seward

109 N.W. 404, 99 Minn. 313, 1906 Minn. LEXIS 429

• Court: Supreme Court of Minnesota
• Decided: November 2, 1906
• Docket: Nos. 15,065—(197)
• Status: Published

Opinion

ELLIOTT, J.

(after stating the facts as above.)

This is an application made directly to the supreme court under a statute which in express terms confers upon the court original jurisdiction to hear and determine election contests. The petitioner by his allegations has brought himself clearly within the provisions of the statute, and the court has jurisdiction to grant the relief sought, providing the legislature had the power to confer it. R. L. 1905, § 202, provides:

Review by Courts. Whenever it shall be made to appear by affidavit to any judge of the supreme court, or of the district court of the proper county, that an error or omission has occurred or is about to occur in the placing of any name on the primary election ballot, that any error has been, or is about to be committed in printing such ballot, or that any wrongful act has' been or is about to be done by any judge or clerk of a primary election, county auditor, canvassing board, member thereof, or other person charged with any duty concerning the primary election, or that any neglect of duty has occurred, or is about to occur, such judge shall order the officer or person charged with such error, wrong or neglect to forthwith correct the error, desist from the wrongful act, or perform the duty, or forthwith show cause why he should not do so. Failure to obey the order of such judge shall be contempt of court.

Sec. 203. Contests for Nomination. Any candidate at a primary election desiring to contest the nomination of another candidate for the same office may proceed by affidavit within five days after the completion of the canvass, as specified in section 202; and the contestee shall be required by the order of such judge to appear and abide the further order of the court made therein.

The supreme court of the state is a constitutional appellate court, with original jurisdiction only in the particular instances in which it is expressly conferred by the constitution. Its appellate jurisdiction .is general and unrestricted; its original jurisdiction is special, and restricted. The general policy which was embodied by the people in that instrument is apparent upon the slightest consideration. The judicial system created by the constitution rests upon the theory that general original jurisdiction is vested in the district courts, which have succeeded historically to the ancient English court of King’s Bench. In these and inferior courts of original jurisdiction all cases are supposed to be heard and determined in the first instance. Over and above these courts is placed an appellate court, charged with the power of supervision, review, and cassation. The organization and constitution of that court is adapted primarily to the work of review only.

But under every system contingencies will arise which call’for the peremptory and prompt relief which only a court of final resort can grant. Under the English system, these instances were provided for by the King’s prerogative, by means of which relief was granted in cases where the ordinary courts were powerless, and no other adequate 'remedy was provided. In the course of time this great prerogative power came to be exercised by means of certain remedial writs, issuing in the King’s name out of the court in which the King theoretically or in fact was always present. Recognizing the occasional necessity for such extraordinary proceedings, the framers of the constitution provided that the supreme court “shall have original jurisdiction in such remedial cases as may be prescribed by law, and appellate jurisdiction in all cases both in law and equity, but there shall be no trial by jury in said court.” Const, art. 6, § 2. The legislature is thus authorized to confer original jurisdiction upon the supreme court in remedial cases, subject to the limitation that there shall be no trial by jury. It can confer original jurisdiction in no other cases.

The word “remedial,” as applied to statutes, is commonly given a very extended meaning, and made to include all such as are enacted from time to time to supply the defects of the existing law, whether arising from the inevitable imperfections of human legislation, from change of circumstances, from mistake, or from any other cause. But it is apparent that the word is not used in this connection in the constitution. As said by Chief Justice Gilfillan in State v. St. Paul & S. C. R. Co., 35 Minn. 222, 28 N. W. 245: “It is evident that the term 'remedial cases’ has here but a limited signification, and cannot extend to all remedies for wrongs; for a very important part of the machinery to administer such remedies in most cases, to wit, the jury, is withheld from the court. It has been the understanding of the court, as we think, from the beginning, and we think also of the bar, as it evidently has been of the legislature, that the cases intended by the term 'remedial cases’ are those where the remedy is afforded summarily through certain extraordinary writs, such as prohibition, mandamus, certiorari and quo warranto. Any greater or less extensive meaning could hardly be given to the term .without making it so indefinite as to make it difficult to say what it means. We are satisfied that is the sense in which the term was used in the constitution.” In State v. Minnesota Thresher Mnfg. Co., 40 Minn. 213, 217, 41 N. W. 1021, 3 L. R. A. 510, Mr. Justice Mitchell said: “It must therefore be considered as settled that the 'remedial cases’ of which the legislature may give this court original jurisdiction include all those special or extraordinary proceedings under what are usually called 'original remedial writs,’ such as habeas corpus, mandamus, prohibition, quo warranto, and the like, of which the constitutions of most states, for reasons of public policy and convenience, give original jurisdiction to their highest appellate court.”

The contention is that the proceeding which is authorized by the provisions of the Revised Laws above quoted is in substance and effect a mandamus proceeding, and hence within the constitutional grant of original jurisdiction. But the petitioner is seeking the order for a purpose in aid of which mandamus would not issue at common law or under the established practice in this state. The constitution only authorizes the legislature to confer upon the supreme court original jurisdiction in cases in which the remedy by mandamus would have been available at common law. It is elementary that words and terms which have a technical and definite meaning must be taken in the sense in which they were understood at the time when they were introduced into the instrument. Manly v. State, 7 Md. 135; Miller v. Dunn, 72 Cal. 462, 14 Pac. 27, 1 Am. St. 67; Attorney General v. Taggart, 66 N. H. 362, 29 Atl. 1027, 25 L. R. A. 613. Thus the trial by jury, which is secured by the constitution of the United States to a citizen who is charged with a crime, is the jury trial as it was known to the common law and as it prevailed when the people adopted the particular constitutional provision. Any attempt of a legislature to deprive a defendant of a jury trial as it was known at the common law, by the substitution of a trial by a differently constituted tribunal, although called a jury, is ineffectual. State v. Everett, 14 Minn. 330 (439); State v. Minn. Thresher Mnfg. Co., 40 Minn. 213, 216, 41 N. W. 1021, 3 L. R. A. 510; Thompson v. Utah, 170 U. S. 343, 18 Sup. Ct. 620, 42 L. Ed. 1061; Opinion of the Justices, 41 N. H. 550.

Upon the same principle of construction we must hold that the legislature has no constitutional power to require this court to exercise original jurisdiction through mandamus proceedings in cases in which mandamus was not the proper remedy at common law as understood and determined when the constitution was adopted. It was at that time thoroughly settled that mandamus was not a creative remedy. It did not call into existence any new liability or duty, and never commanded the performance of an act which was unauthorized in the absence of the writ.

The origin of this ancient writ is very obscure. It has undergone many changes during the generations in which it has been in use. It was originally a high prerogative writ, and the King’s prerogative was part of the common law of England. It was the aggregate of the King’s special powers and privileges — what Bracton calls privilegia regis, and Briton le droit le roy — the personal rights or powers of supreme character exercisable without question and without responsibility. 10 Enc. of Laws of England, 311. In the beginning the King doubtless sent his signet ring to attest the authority of his verbal message of command. The earliest writs were in the form of letters missive, and were mere personal commands. They were writs of direction, created and enforced by authority of the royal will — vobis mandamus. The command was a law in itself, from which • there was no appeal. It was not only declaratory of a duty under an existing law, but was a law in itself. It created the law and imposed the duty, the performance of which it commanded. In time there came into use a judicial writ of mandamus, which issued in the King’s name out of the court of King’s Bench, and which gradually supplanted the old personal command of the sovereign. By the end of the reign of Edward I this form of mandamus was in common use in aid of the police power of the kingdom. Its proper use was settled in England long prior to the time when the common law passed to America. Rex v. Askew, 4 Burr. 2186, 16 Eng. Rul. Cas. 760, Ann. See also the cases cited in a note to Reg. v. Lord Commissioners, 16 Eng. Rul. Cas. 785. It is described by Lord Mansfield in Rex v. Barker, 3 Burr. 1265 (1762) and a little later Blackstone wrote: “A writ of mandamus is, in general, a command issuing 'in the King’s name from the court of King’s Bench, and directed to any person, corporation, or inferior court of judicature within the King’s dominions, requiring them to do some particular thing therein specified which appertained to their office and duty, and which the court of King’s Bench has previously determined or at least supposed to be consonant to right and justice.” Blackstone, Comm. Bk. 3, p. 110. By this time the arbitrary features of the writ had disappeared. It no longer created a duty, but was based upon law existing dehors the writ. The prerogative form was still preserved, and under English law, even since the enactment of the common law procedure act of 1854 and the judicature act of 1873, a distinction has been made between the prerogative writ and the action of mandamus which is authorized by the statute. Reg. v. Lambourn, 22 Q. B. Div. 463; Glossop v. Heston L. R. (1879) 12 Ch. Div. 102. In this country the form of a prerogative writ is- still preserved, although because of our form of government this has ceased to have any particular importance.

When our constitution was adopted, the writ of mandamus was granted only in certain well-defined cases. It issued only to command and compel the performance' of clearly defined duties which were already prescribed by law. 8 Enc. of Eaws of England, 96, and cases there cited. The present “existence of a legal right or obligation is the foundation of every writ of mandamus.” Eord Campbell, Ex parte Napier (1852) 18 Q. B. 692, 695. No new duty was created by the writ; it was neither a law nor the source of law; it never commanded the performance of an act which was unauthorized in the absence of the writ. Its office was to compel the performance of a plain and positive existing duty, and it issued only upon the application of one who had a clear right to demand the performance of such duty. It issued only to compel a party to do that which it was his duty to do without the command of the writ, and the obligation had to be both peremptory and clearly defined. By it judicial powers were set in motion and the performance of administrative duties compelled. Marbury v. Madison, 1 Cranch, 137, 2 L. Ed. 60; Kendall v. U. S., 12 Pet. 524, 9 L. Ed. 1181, 10 L. Ed. 317; Com. v. Boutwell, 13 Wall. 526, 20 L. Ed. 631; Ex parte Cutting, 94 U. S. 14, 20, 24 L. Ed. 49; U. S. v. Blaine, 139 U. S. 306, 319, 11 Sup. Ct. 607, 35 L.. Ed. 183; International v. Lamont, 155 U. S. 303, 308; Roberts v. U. S., 176 U. S. 221, 229, 20 Sup. Ct. 376, 44 L. Ed. 443; La Grange v. State Treasurer, 24 Mich. 468; People v. Campbell, 72 N. Y. 496; People v. Board, 107 N. Y. 235, 13 N. E. 920; People v. Newton, 112 N. Y. 396, 19 N. E. 831, 3 L. R. A. 174; Ex parte Railway Co., 121 N. Y. 536, 24 N. E. 951, 9 L. R. A 124; People v. City, 193 Ill. 507, 62 N. E. 179, 58 L. R. A. 853, and note; State v. Whitesides (S. C.) 9 S. E. 661, 3 L. R. A. 777, and cases cited in note thereto.

Thus a railway company sought the writ of mandamus to compel a board of public works to issue a permit authorizing it to open a street for the purpose of substituting electric power for horse power, but it was denied because it was not clear that the existing law made it the duty of the commissioners to issue the permit. People v. Newton, supra. Thereafter the legislature passed a statute which expressly imposed this duty upon the commissioners and upon a new application a writ of mandamus issued to compel performance of the duty thus clearly imposed by the statute. Ex parte Railway Co., supra.

It thus appears that the mere fact 'that a person claims legal rights and that he is entitled to have his rights determined in a legal proceeding does not entitle him to invoke the extraordinary remedy provided by the writ of mandamus. The distinction between cases which are triable in ordinary actions or in special statutory proceedings and those which may be tried in mandamus proceedings is illustrated by the provisions of the statute under which the petitioner is proceeding. Section 202 provides for cases in which mandamus is the proper remedy. The error, wrong, or neglect of duty which is there referred to relates to duties which are clearly defined by existing law. It is the clear and unquestioned duty of the officer to do or' not to do the act, without reference to any order or writ of any court. Upon an application duly made, the statute requires the court to issue an order, which may be treated, in effect, as an alternative writ of mandamus, requiring the'official to omit to do what the law forbids, or to do what the law already commands. It is immaterial what name the legislature gives to the proceeding. It provides for a remedial case, within the meaning of the words as used in the constitution, and original jurisdiction therein may properly be conferred upon the supreme court.

But section 203 in express words provides for the institution of and procedure for the trial of an election contest. Mandamus is not, and never was, the appropriate procedure for the trial of an election contest. This petitioner seeks the order of the court to compel certain persons and officials to do what they have no legal right to do without the order of the court. Mandamus will issue to compel a certificate of election to issue upon the returns, in accordance with a decision made by the proper body; but when it becomes necessary to go beyond the returns, and consider questions touching the legality of elections, or of fraud, illegal voting, or the like, mandamus is not the proper action, and it is necessary to resort to quo warranto, or such statutory proceedings as may be provided on such occasions. McCrary, Elec. (4th Ed.) § 398, citing State v. Churchill, 15 Minn. 369 (455). The statute now under consideration has provided a full and adequate remedy for the trial of such contests. Section 202 provides for an application to either the district or supreme court, and there is no doubt that the legislature has full power to confer original jurisdiction for the purposes therein referred to upon either court. It is equally clear that the legislature may authorize and direct the district courts to hear and determine election contests referred to in section 203 by means of the procedure provided for in section 202, but the supreme court can be authorized and directed to entertain original jurisdiction only in the remedial cases referred to in the constitution. These words, according to the established rule, refer only to the extraordinary writs, such as mandamus, quo warranto, and the like.

The proceeding authorized by sections 202 and 203 is either an ordinary action, or a proceeding in the nature of mandamus. If the former, original jurisdiction to entertain it cannot, under the constitution, be conferred upon the supreme court. If the latter, it is not a case properly determinable by a writ of mandamus, as that writ was understood when the constitution was adopted, and has since been universally and consistently used. If the legislature may confer upon the supreme court original jurisdiction in ordinary actions by merely authorizing them to be tried in an action of mandamus, it may, by the mere expansion of the definition, confer original jurisdiction to try at least any civil action which may be tried without a jury. This cannot have been the purpose of the framers of the constitution or of the people by whom it was adopted. We therefore hold that section 203, in so far as it attempts to confer upon the supreme court original jurisdiction to hear and determine election contests, is invalid and unconstitutional. The application must be made, in the first instance, to the district court, and, after the issues have been there heard and determined, the proceedings will be subject to review on appeal.

Proceedings dismissed.