Mau v. Stoner

83 P. 218, 14 Wyo. 183, 1905 Wyo. LEXIS 42

Opinions

Van Orsdel, Justicr.

This action was instituted in the District Court of Uinta County by the defendants in error, plaintiffs below, for the appointment of a suitable person to distribute between the parties to this action the water from a certain irrigating ditch in said county known as the Mau canal. The court in its decree found that the parties to the suit were joint ■owners of the canal and made the appointment as prayed for in the petition. From this order the cause was appealed to this court. Counsel for defendants in error contend that an appeal will not lie from the judgment of the Distinct Court in this case, and that this court is without jurisdiction in the premises. This action was brought under the provisions of Sections 908 to 914, inclusive, Revised Statutes, 1899. Section 910 provides: “The hearing provided for under this chapter may be held either before the court, the judge thereof sitting in chambers, or the District Court Commissioner of said county, and shall be had upon the day fixed in the summons for making answer to the petition filed, or as soon thereafter as possible, and the decision of •the court, judge or commissioner shall be final.” This section was amended by Chapter 93, Session Laws, 1903, to read as follows: “The hearing provided for under this chapter may be heard either before the court, the judge thereof sitting in chambers, or a District Court Commissioner of said county, and shall be had upon the day fixed in the summons for making answer to the petition filed, or as soon thereafter as possible. The decision so rendered shall be final unless an appeal is taken to the District Court of the county, which may be taken in the manner provided for appeals from'justice court; Provided, however, That the judge or court commissioner shall fix the amount of the undertaking in appeal according to the value of the property involved and the damages which may be sustained.” This section as amended provides only for an appeal from the judge in chambers or the court commissioner of the District Court, leaving the decision of the District Court final. We think this amendment will not bear any other reasonable construction. The very effect of the order sought is temporary in character and to meet an immediate emergency. It was manifestly the intention of the Legislature that in a special proceeding of this kind, the order being for temporary purposes, the objects of the statute should not be obstructed and valuable property interests jeopardized by the delay of an appeal to' this court, but that the decision of the District Court should be final and conclusive. It is, therefore, contended that, in as much as the Legislature has declared the decision of the District Court to be final, this court is without jurisdiction to entertain this appeal. If this contention is correct, a judgment of dismissal must necessarily follow. It is well settled that in the absence of a direct constitutional requirement the right of appeal does not exist unless expressly conferred by statute. The right to have a judgment of an inferior tribunal reviewed by writ of error or appeal is not a natural or inherent right. It pertains merely - to the mode of judicial procedure or the remedy. Unless it is guaranteed as a matter of right in the constitution, the Legislature has power- to pass laws not only regulating the mode of pro ceeding, but limiting the cases in which the right may be exercised. The remedy by appeal was unknown to the English common law, hence it may be said that in both England and the United States the whole matter of appellate review is regulated almost entirely by statute law.

Since the Legislature has declared that the judgment of the District Court shall be final in cases brought under the provisions of the statute under consideration, it becomes important to determine whether under the constitution of this state the right of appeal is guaranteed in all cases. The constitution in defining the appellate jurisdiction of the Supreme Court provides: “The Supreme Court shall have general appellate jurisdiction, co-extensive with the state, in both civil and criminal causes, and shall have a general superintending control over all inferior courts, under such rules and regulations as may be prescribed by law.” (Const., Sec. 2, Art. 5.) Section 18 of the same article provides: “Writs of error and appeals may be allowed from decisions of the District Courts to the Supreme Court under such regulations as may be' prescribed by law.” And again in the same article Section 23 provides: “Appeals shall lie from the final decisions of justices of the peace and police magistrates in such cases and pursuant to such regulations as may be prescribed by law.” Section 2 merely defines and limits the jurisdiction of the Supreme Court without attempting to define the manner of appeal or the class of cases in which appeals may be taken. It provides that the appellate jurisdiction of the Supreme Court shall extend throughout the state both in civil and criminal cases without attempting-to define how it may be exercised. We think the expression “under such rules and regulations as may be prescribed by law” refers to and limits all the powers conferred by the section — in other words, prescribes how the exercise of these powers may be regulated and limited. The construction of Section 2 is materially affected by the provisions of Sections 18 and 23, which refer particularly to judgments, of the District Courts and justices of the peace and police magistrates where the whole matter of writs of error and appeals is again referred to the Legislature. The provision in Section 23 expressly allowing the Legislature to limit the cases which may be appealed from courts of justices of the peace or police magistrates, to that extent, clearly allows a limitation upon the general right of appeal in all cases to this court; a plain contradiction, on the face of the instrument itself, of the contention that the right of appeal .in all cases is guaranteed by the constitution. It will be observed that in Section 23 where the word “shall” is employed, a word generally mandatory in its legal acceptation, the words “in such cases” are used, thus permitting the Legislature to limit the cases coming under that section, which we think assists in the construction of Section 18. By that section it was intended merely to provide that the Legislature might allow writs of error and appeals when it might deem it most expedient for the public welfare. We have been able to find but two states where they have provisions in their constitutions exactly similar to Section 18 above quoted. In South Dakota, under a provision of the constitution the same as ours, the Supreme Court construing it, said: “By it they provided that ‘writs of error and appeals may be allowed * * * under such regulations as may be prescribed by law.’ ” The word “may” is evidently used in that section in its proper sense as permissive and not in the sense of “must” of “shall.” Again, by Section 20 of the same article it is provided that “writs of error and appeals may be allowed from county to the circuit courts, or to the Supreme Court, in such cases, and in such manner as may be prescribed by law.” If the contention of the respondent is correct, that by Section 2 appellate jurisdiction is given in all cases to the Supreme Court, neither Section 18 nor Section 20 would be necessary, except so far as they might provide for the manner in which an appeal should be taken. The authority to allow appeals would be nugatory. It is quite clear from the provisions of Sections 18 and 20 that the framers of the fundamental law intended to leave the power over the subject of appeals to the Legislature, to be exercised in such manner as public policy and the best interests of the people might require.” (McClain v. Williams, 10 S. Dak., 332.) In Illinois, under a similar constitutional provision providing that “appeals and writs of error shall be allowed from final determinations of county courts as may be provided by law,” the court said: “Plainly this does not confer the right to á writ of error from this court in all cases decided by the county court. Whether the case shall be taken, by appeal or by writ of error, to this court or to some other court, must be provided by law. It is but a direction to the General Assembly to prescribe, by law, how appeals and writs of error shall be allowed from final determinations of county courts.” (Kingsbury v. Sperry et al., 119 Ill., 279.) In Michigan, the court construing a provision of the constitution vesting in the Supreme Court the general superintending control of all inferior courts with power to issue original and remedial writs, and providing that “in all other cases it shall have appellate jurisdiction only,” said: “The appellate jurisdiction in ‘all other cases’ is as plainly conferred by this section as is the appellate jurisdiction of the circuit courts in all cases of inferior tribunals. Among the other cases are those which arise in equity and are tried on the chancery side of the circuit courts. In these cases the jurisdiction of this court is appellate, but it obtains no jurisdiction in this class of cases, except by this act of the Legislature allowing appeals.” (Sullivan v. Haug, 82 Mich., 548.) In Cady v. Manufacturing Co., 48 Mich., 137, Mr. Justice Campbell, stating the law as to the right of appeal under the constitution of that state, said: “No appeal lies in any case except where given by statute.” In West Virginia, where the constitution provides that the Supreme Court shall have appellate jurisdiction in civil actions where the amount in controversy exceeds one hundred dollars, the court, construing this provision of the constitution, said: “Failure to give an appeal or writ of error in every case is not the result of oversight in the people in the adoption of the constitution, nor of the Legislature in making laws under it. On the contrary, there is a deliberate purpose to set limits upon litigation, after one trial in the court having jurisdiction, and put an end to the controversy. Though writs of error came into use, as common law remedies, more than seven centuries ago, there is no absolute right in the suitor to have a decision reviewed, which must be respected in making laws, and, in the absence of some constitutional inhibition, it is within the power of the Legislature to prescribe the cases in which, and the courts to which, parties shall be entitled to bring a cause for review.” (Fleshman v. McWhorter, 54 W. Va., 161.) This court held in the case of In re Boulter, 5 Wyo., 263, as follows: “We have no direct constitutional provision allowing appeals as a matter of right in criminal cases, except that this court is clothed with appellate jurisdiction in criminal as well as in civil causes, and is vested with a general superintendence and control over all inferior courts, under such rules and regulations as may be prescribed by law (Const., Aid. 5, Sec. 2), but the statute relating to appeals, and which has stood practically untouched for a quarter of a century, provides for allowance of writs of error in criminal causes, “for good cause shown,” upon the application of the defendant. It has been the practice lately in this court to allow writs of error pro forma, but this is a matter of grace. Either the court or judge to whom the application for the writ of error is made may refuse the writ if it does not appear that sufficient reasons exist for its allowance.” In this state the Legislature has assumed the right to regulate, to some extent at least, the subject of appellate procedure. Section 4249, R. S. 1899, providing that, “A judgment rendered or final order made-by the District Court may be reversed, vacated or modified by the Supreme Court, for errors appearing on the record,” was in force not only at the time of the adoption of the constitution, but has been ever since. Recently the Legislature has provided for the bringing of criminal cases to this court by petition in error instead of by writs of error as formerly. (Chap. 63, S. L. 1901.) Writs of error and certiorari had been abolished in civil cases by the Territorial Legislature long prior to the adoption of the constitution. (R. S. 1899, Sec. 4270.)

It is not necessary, however, in this case for us to express an opinion as to whether there is a constitutional' right of appeal or review in cases which proceed according to the course of the common law. The statute under consideration provides for a special or summary proceeding unknown to the common law, created by the Legislature for the purpose of affording temporary relief only and to meet immediate emergencies that may arise under it. The Legislature clearly had the power in such a proceeding to declare that the decision of the District Court should be final and deny the right of appeal therefrom. We, therefore, hold that the Legislature in this proceeding had the right to declare the judgment of the District Court final, and that it has done so by the statute under consideration. It is unnecessary to consider the errors assigned in the record. The appeal is dismissed.

Potter, C. J., concurs. Beard, J., having announced his disqualification, did not sit in the case.