State v. Gleason

12 Fla. 190

• Court: Supreme Court of Florida
• Decided: July 1, 1868
• Status: Published

Opinion

WESTCOTT, J.,

delivered the opinion of the Court.

'Phis is an application for this court to exercise original jurisdiction in the case at bar, which is an information in the nature of a quo warranto instituted in behalf of the State of Florida by Almon R. Mock, its Attorney-General..

Under the first four points of the answer to the rule, the fol lowing questions arise:

Has filiis court original jurisdiction to issue a writ of quo war ranto ? Tf so, do proceedings under an information in the na ture of a quo warranto come within the constitutional grant of power to issue a writ of quo warranto, and is it necessary for the Legislature to prescribe the mode and manner of proceeding before the court can exercise the-power granted in the Const! tution ?

Upon an examination of the Constitutions of the several States (as well as that of the United States) it will be found, that in some constitutions the. powers granted to the Supreme Court are threefold:

First. Appellate powers.

Second. Original powers, embracing the -power to issue writs of mandamus, quo warranto, prohibition, and habeas corpus, ad dressed to persons, or to courts.

Third. The grant of power to exercise a superintending control over courts of inferior jurisdiction, by means of writs of certiorari, prohibition, mandamus, and other writs applicable to this purpose.

In other Stales, it, will be found that. the. powers given are twofold :

First. Appellate powers strictly.

Second. Power to exorcise a. superintending control over inferior jurisdictions by appropriate writs, and power to issue writs of h/dxmx cor/ncx. '

A careful examination will show that (he Supremo. Courts of the States are, as a. general thing, clothed with powers in addition to those which are <i)j/xdlat/' in Ifn’ir r/t.uructcv.

Tlius, in New Hampshire, the Supremo Court, like the Court of King's Bench, it.s great prototype, has / ychixii'x jurisdiction to issue writs of //no mtrrunto^ mandamus and prohibition ; a jurisdiction of this character being not onlyvery high and transcendent,” but in its results, important, keeping all inferior jurisdictions within their limits, superintending all corporations, commanding magistrates to do their duty, and protecting the offices of the State,, and its franchises, from usurpation. They are high prerogative writs.

Tiic Supremo Courts of Massachusetts, .Minnesota, Connecticut, Arkansas, .Missouri, .Maine, California, Michigan, New Hampshire, and of other States, not necessary to mention, have original powers; solías the Supreme Court- of the-United States, ft is true that the original power exists to a ver.v limited e.x-T-ent. in many, bul it is there nevertheless.

The powers granted to Ihe. Supreme Court of this State are found in Sec. Art. VI., of the Constitution, which isas follows: “The Supreme Court shall have appellate jurisdiction in all •eases in equity, also in all cases of law in which is involved the title, to or right of possession of real estate, or the legality of any tax, impost, assessment, toll, or municipal tine, or in which the demand or value of the properly in controversy exceeds three hundred dollars; also in all other civil cases not included in the general subdivisions of law and equity ; also in all questions of law alone, in all criminal cases in which the offense charged «.mounts to felony, 'flu: court shall have power to issue writs of mandamus, certiorari, prohibition, quo warranto, habeas corpus, and also all writs necessary or propel’ to the complete exercise of its appellate jurisdiction. Each of the justices shall have the power to issue writs of habeas corpus to any part of the State tip on petition by or on behalf of any person held in actual custody, and may make such writs returnable before himself or the Supreme Court, or before any Circuit Court in the '•'tate, or before any judge of said courts.”

It will be noted that the second clause is as follows:

“ The court shall have power to issue writs of mandamus, certiorari, prohibition, quo warranto, habeas corpus, and also all .vrits necessary or proper to the complete exercise of its appellate jurisdiction.”

The question here is, Does this clause grant the power to this court to issue the enumerated writs, otherwise than in aid of >ts appellate jurisdiction andas an original power?

Two positions are taken in argument-,in inference to the grant of powers to the Supreme Court.

It is assumed, that that portion of the Constitution preceding the clause which we are here to construe, vests a jurisdiction which is strictly appellate in its character, and, excluding the exceptions enumerated, so .extensive in its scope that the <£ human mind can conceive, of no casein which the court, has not appellate jurisdiction.”

This is without doubt a correct construction, and it follows from it also, that the court would, without any additional or subsequent clause in the Constitution, possess all the powers necessary to its complete exercise, upon the admitted and ever active principle applicable to the construction of constitutional grants of power — that the incidental power follows the grant of the principal power. A grant of the principal power of apj>cllate jurisdiction embraces, e.v- necessitate, the powers appropriately adjunct thereto; without them the principal grant would be 'inoperative, and substance become but shadow.

The second position assumed in argument is, that the next grant of power contained in the words “ the court shall have power to issue write of mandamus, certiorari, prohibition, quo warranto, habeas corpus,” is qualified by the words “ necessary or proper to the complete exercise of its appellate jurisdiction,”' in the subsequent portion of the sentence.

The precise extent to which it was qualified was not developed ; but looking to authority to determine it, the conclusion is irresistible, that with this construction this court has nothing granted in this entire sentence, purporting to grant additional-powers, which did not follow from the extensive grant contained in the preceding portion of the section.

If the words “ necessary or proper to the exercise of its appellate jurisdiction” are held to qualify, to the extent claimed,, the power to issue the preceding enumerated writs, the result is twofold:

First. That this court has nothing except appellate jurisdiction, and it can issue no writs, whatever may be their character (except hateas corpus), that are not necessary or proper to a complete exercise of appellate jurisdiction.

Second. That power “ to issue -writs of mandamus, quo warranto, hateas corpus, and such other j-emedial and original writs as are necessary to give this court a general superintendence and control of all inferior courts,” is not vested in this court.

As to the second position stated, it is taken upon the assumption that Justice Thompson, one of the ablest judicial minds this State has produced, was correct in his view in the case of ex parte White, 4th Florida, 165, to the efiect “that power to. issue writs of injunction, mandamus, quo warranto, habeas corpus, and such other remedial and original writs as may be necessary to give this court a general superintendence of all other courts, is a power not necessarily included in the grant of appellate jurisdiction.”

This conclusion of Justice Thompson is somewhat shaken, if not entirely overthrown, by the decisions in tlie Supreme Court of the United States.

The powers granted to the Supreme Court of the United States by the Constitution of the United States are original as to cases affecting ambassadors, <fcc., but in all other cases the Supreme Court has appellate jurisdiction.

Under this grant, and by virtue of acts of Congress regulating it, Avhich as a matter of course could only be operative within the Constitution, the Supremo Court of the United States in U. S. ats. Richard, Peters District Judge, granted a writ of prohibition to restrain an inferior court. 3 Dali. 121.

In ex parte Bradstreet, 7 Peters, 648, a Avrit of mandamus to the Judge of the District Court of the United States, Northern District of N üav York, avias granted.

A habeas corpas and certiorari was granted in ex parte Burford, 3 C., 448.

While aa'c concur Avith Justice Thompson in the conclusion to Avhich he arrived in ex parte White, we do not agree Amth him as to this doctrine, one of the premises upon Avhich his conclusion aa’us based.

The conclusion from these cases in the Supreme Court of the United States is, that Avhen the object and effect of an application to the Supreme Court of the United States is to bring under revieAV the. decisions of an inferior court, or to direct its action, or control or annul its excesses, the appellate jurisdiction given by the Constitution attaches, and that the court may exercise that appellate jurisdiction, in some cases by means gf the Avrit of habeas corpus, and in others by the aatíís of mandamus, certiorari and prohibition.

It makes no difference, hoAvever, Avhich is the correct rule, for looking at our Constitution in the light of the doctrine enunciated in ex parte White, or in the contrary view held as to the extent of pOAvevs resulting from a simple grant of appellate jurisdiction by the Supreme Court of the United States, there is one result which attends both.

If the doctrine in ex parte White — that the power' to issue these writs to control inferior courts does not attach to a general appellate jurisdiction — be correct, then the subsequent clause, which restricts the power to issue them to these purposes according to the construction contended for, operates to qualify the previous clause to such an extent as to destroy it, and to render the principal and leading- portion of the sentence, the one that in very words purports to grant a power, entirely nugatory, by a clause subsequently qualifying it. So also, if the powers incident to the simple grant of appellate jurisdiction are correctly stated by the Supreme Court of the United States, it is evident that the entire clause was unnecessary, for it conferred nothing which it did not have before.

In either view, it will thus be seen that these conclusions are inconsistent with the rule that when several grants of power are made in an instrument, they should be so construed as to make them each operative to accomplish the usual purposes to which they are applicable.

There is again a manifest difference between the effect which the clause construed by Justice Thompson liad by his construction, and that which would follow the construction of this entire-clause as contended for by respondent here.

Whatever may be said of the construction which Justice Thompson gave to the clause in the old Constitution in other respects, it yet made it operative to confer an additionaljomoer. According to his view it vested a jurisdiction not granted in the preceding clauses. He did not make it surplusage, or unnecessary. If, admitting 'the operation of the last clause of this sentence to be as contended for by respondent, it resulted to vest another and different power, then the effect given to the entire and parallel clause of the old Constitution would be carried out; but when this is not so, but a construction is given which vests no additional power, we depart from the path he followed. We should recollect in giving a construction to constitutional grants that it is not their aim to provide the mode and method by which powers are to be exercised.

Any construction, of a sentence, even in an instrument of much loss importance than a Constitution, which makes one portion of it so qualify another that it destroys its effect, or makes it surplusage when used in connection: with the other portion of the instrument, or such a construction of a clause in a State Constitution pm-porting to give power as permits it to give no other than existed before, is not usually correct. Such a construction should not be given unless the language is capable of no other intelligent meaning.

Permitting- this rule to operate here, we are satisfied that no impartial mind can give to this entire sentence, proposing to grant a distinct power, such an interpretation as does not do so. If such is the case, the power to issue the specified writs must be original. Such a construction is entirely consonant with the genera] purposes of the creation of a Supreme Court; that Is, that it should have some other power than that which is strictly apjiellate. This is true of the Supreme’ Court of the United States, and it is true in reference to the Supreme Judicial Tribunals of most of the States.

In the old Constitution this could not operate, because the court by its terms was expressly restricted to appellate jurisdiction only, except in those cases otherwise provided. Here we have no analogous clause. If there was, wo would require a most positive grant of original power before we should admit it. General terms such as this, preceding the body of the grant, should have a general effect to control and limit the subsequent portions of it; and this should be the case oven though some portions of it are rendered inoperative, unless the intention to modify the original limitation is clearly expressed. This we conceive is the only justification for such a construction being given to the old Constitution as restricted its power to issue a writ of quo warranto to a case where it must be used to control or supervise a subordinate court, a case which any one at all familiar with the nature of the proceeding, and the end it accomplishes, knows can never arise.

Tliis proceeding cannot control or supervise. To control, means to direct without destroying; to supervise, to sonic extent involves the same idea. A writ of quo warranto affirms an existing right to an office, or it destroys and sets aside the pretended claim of an usurper; it controls him in the exercise of the office in no legitimate sense, and it does not supervise its exercise, but destroys the power to act, by denying the right to hold the office and pronouncing- judgment of ouster.

If the same power and none other was intended to be granted in the new Constitution, why was there so marked a difference between the language employed in the two ? The framers of the new Constitution had but to adopt the language of the first, which had received judicial construction, to secure the same result; that they adopted different language shows that they intended to make a change in the power.

These specified writs are the very “ armor of sovereignty ; they are designed for the very purpose of protecting the sovereignty from invasion or intrusion;” the office of one, tlie “ writ of quo warranto,” is to check the course of usurpers, and to remove those from positions “ who assume without legal right its name, or seize upon its franchise.” The purposes for which the specified writs in this clause are applicable, should to some extent control us in our interpretation of it. -

A mandamus is a writ addressed as well to corporations and officers as to courts. The writ of quo warranto is addressed to officers either of the State or of a corporation. In so far as the mandamus controls courts it can bo used as auxiliary to appellate jurisdiction; in other cases it is not so. Marbury vs. Madison, 1st Cr., 165.

If there was a doubt, the rules of construction would require full operation to be given to these writs to accomplish the natural ends to which they are adapted.

Much stress has been laid upon the use ol' the conjunction “ and ” in this sentence, preceded as it is by a comma.

To say that because a copulative conjunction and a comma intervene between two clauses of a complete sentence vesting powers in a court, that what follows necessarily restricts the application of what precedes, as an abstract proposition is no more a necessary result than the reverse of the proposition, to wit: that what precedes necessarily restricts what follows. The true rule is, that the concluding clause or preceding clause may restrict, limit, or enlarge as the language requires, and as the nature of the subject matter demands. When “ wo interpret a Constitution, what wo are to seek is, the thought which it expresses. To do this, tlie first resort in all cases is to the natural signification of the words employed, in the order of arrangement-in which the framers of the instrument have placed them. If, thus regarded, the words embody a definite meaning, which involves no absurdity and no contradiction between different parts of the same writing, then that 'meaning apparent in the face of the instrument is the one which we alone are at liberty to say was intended to be conveyed.”

It is contended that this court can use these writs only in aid of its appellate jurisdiction. Ts this the natural import of the words ?

The sentence is, “the court shall have power to issue writs of mandamus, certiorari, prohibition, quo ■warranto, habeas corpus, and also all writs necessary or proper to tho complete exorcise of its appellate jurisdiction.” The word “ also,” hero used, signifies “ in like manner, further, likewise and its effect is not 'to limit, or to restrict, but to enlarge; the sentence is the same as if it was “ the court shall have power to issue ” the specified writs, and shall have power “ to issue all writs,” &o. Why use the words “ and also,” if something in addition to what had gone before was not to follow, and the words “ all writs,” if some of the same character preceded'? And why restrict the grant of power to issue all writs to those necessary for its “ appellate jurisdiction,” if it liad none other than appellate jurisdiction ? Why, in a subsequent clause, point out the mode of exercising the previous grant to issue the writ of habeas corpus, and confer express original jurisdiction, if the tribunal was to be appellate only ? It should he construed to grant a new power,, as well as to give full effect to the specified writs. The whole clause should he construed in accordance with the manifest purpose of the grant of power to issue the writ of habeas corpus, which the subsequent portion, providing- the machinery for its exercise makes clear was to he an original power.

Our conclusion is, that the jurisdiction of this court is twofold: appellate jurisdiction proper, with power to issue all writs necessary to its full exercise, and original jurisdiction to issue the specified writs when they are the appropriate1 remedios.

Having disposed of this point, the next question to ho considered is, Hoes the proceeding here, to wit: an information in the nature of a quo warranto, come within the constitutional grant of power to issue a writ of quo warranto ?

It will he found by reference to the American cases, that the constitutional grant of power in other States where the proceeding has been by information, is precisely similar to the grant here.

An examination will show that in the American practice, the terms <£ quo warranto,” and “ information ” in the nature of a quo warranto, aroused as synonymous and convertible terms, the object and end of each being substantially the same. Speaking of an information of this character where the constitutional grant of power was the same as in our Constitution, the Supreme Court of Missouri say : “ This court conceives that jurisdiction is given of this case by the power to issue writs of ‘ quo warranto. ’ ” State vs. Merry, 3d Mo., 198; 8th Mo., 331.

Tn Wisconsin, the Supreme Court hold to the same view, remarking that the information has in view the same object-. 1st Wisconsin, 333.

This upon examination will he found to bo tlie American doctrine, and in England such a thing as a distinct proceeding by the ancient writ of quo 'warranto has not been practiced for centuries.

Is it necessary for the Legislature to prescribe the mode of proceeding, before the court can exorcise the general power granted by the Constitution ? — is the next point raised, which readies to the jurisdiction of the court.

Chief-Justice Marshall, in speaking of implied and resulting-powers from a general grant of jurisdiction, says : “ It has been justly observed that no act of Congress directs grand juries or defines their powers. By what authority, then, are they summon - ed ? The answer is, that the laws of the United States have erected courts which arc invested with criminal jurisdiction. This jurisdiction they are bound to exercise, and it can only be exercised through the instrumentality of grand juries. They are therefore given by a necessary and indispensable implication. But how far is this implication necessary and indispensable ? The answer is obvious. Its necessity is eo-extonsive with that jurisdiction to which it is essential. Therefore the power is implied, ami is as legitimate as if expressly given.” 1 st Brock, 159.

The precise point arose in 3d Mo., 198, where it was held, “the Legislature has not prescribed any mode of proceeding in a cause like the present, but in the absence of such regulations this court will proceed to discharge its duties by a course conformable to the common law usage.”

Other citations on this point: 3d Dallas, 1. 2d Scam., 335. 2d Story on Com, 585, 1773. Sedg. Con. Law, 588.

Besides, the act of August 1st, 1868, vests the court with all necessary power. P. 10, Acts of 1868.

We think there is no necessity for' the Legislature to act, to enable this court to exercise its constitutional jurisdiction. If such was the ease, a refusal to act would emasculate the power of the court, and render it unable to perform its constitutional duties and powers.

The court having announced the foregoing opinion, the Attorney-General, on the 27th day of November, A. D. 1868, made and entered his certain motiou in the words following, to wit: