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principle of the laws of that country from which we derive most of our principles of jurisprudence, and is so intimately connected with them that it is difficult to separate them. In the Saxon times the Witenagemote was the supreme court and had the general superintendence.

But in the time of William the Conqueror the aula regis was established as the sovereign court of the kingdom, and to that court devolved all the former judicial power of the Witenagemote; the power of superintending the other courts was derived from the principle of supremacy.

1 Crompton's Practice, 3, 5, 12, 21, 22, 26, 27, 28, 1 Bac. Abr., 553, 2 Bac. Abr., 187, 213.

The Court of King's Bench superintends the proceedings of all other inferior courts, and by the plenitude of its power corrects the errors of those courts; hence it is that a writ of error lies in that court of a judgment given in the King's Bench in Ireland. And upon a judgment in Calais, when under the subjection of the King of England, a writ of error lay in the King's Bench. 4 Inst., 282. A writ of error would have laid to the King's Bench from these colonies, before the revolution, but for the particular provisions of the charters, etc."

So far as we can discover no court of last resort in this country has had occasion to exercise the prerogative here under discussion as a power distinct and independent from its ordinary appellate jurisdiction. The nearest approach to its exercise has been the use of the writ of certiorari in states where original jurisdiction is given to the Supreme Court in such cases, to prevent nisi prius and other inferior courts from traveling outside their jurisdiction. As we shall presently see, the power of superintending control is much more comprehensive than that of restraining inferior courts from exceeding their jurisdiction. This power is intended as well to cause them to exercise the jurisdiction they do have in conformity with the law as announced by the Supreme Court. This non-user of the authority is doubtless due to the fact that our people recognize the all-pervasive operation of the law. Such deference do the people, and specially all inferior tribunals and the profession, under the doctrine of stare decisis, pay to the views of the court of last resort on legal doctrines announced in the exercise of its ordinary and appellate jurisdiction, that the distinct and independent power here discussed has not often been invoked for lack of occasion. It is certainly remarkable, in view

of the almost infinite diversity of contentions arising between men, and in view of the fact that in nine states the people in their sovereign wisdom have conferred this special grant of power on their courts of last resort, that no case can be readily found wherein it became necessary specially to exercise this high prerogative power. The capacity of our race for self-government, the conservative tendency of our profession as ministers in the temple of justice, can have no higher commentary.

The sovereignty of the law when declared by the highest court is universally recognized by our self-governing, or rather law-governed people. As was well stated by E. G. Ryan in his argument in the celebrated case of the Attorney General on the relation of Bashford vs. Barstow, wherein it was strongly hinted on the other side that if the decision of the court should be adverse to Governor Barstow he might resist its judgment. "Sovereignty is in the law. Its will is execution, its will is justice. It rules, controls us all; it is above us all, it is up in the sunlight of sovereignty, it is alone sovereign. All the powers of the government are exercised under the judiciary and triable by the judiciary, because it is the mouthpiece of the law. The moment this is otherwise we have ceased to be independent and free. The general recognition of the irresistible power of the law as declared by its highest court is, with rare exceptions, fully recog nized by all the people and especially by the profession and the lower courts."

The fact that this power of superintending control, other than what incidentally and indirectly results from appellate jurisdiction, has heretofore rarely, or never, been exerted, does not demonstrate that the need of its exercise will never arise. The non-use of the special power is probably the reason we are unable to find any treatise or essay on the subject. The subject can not be found alphabetically arranged in digests or encyclopedias of law, as a subhead under "jurisdiction" or elsewhere. Our researches have enabled us to find only five or six cases in which the power has been discussed by the judiciary, and even those were controversies wherein no necessity for its exercise


In the case of Attorney General vs. Blossom, reported in 1 Wis., at page 277, an information was filed in the Supreme Court of that state in the nature of a quo warranto, against Blossom and others, charging that they were exercising the powers and privi

leges of banking, and issuing for the purpose of circulation as money, bank bills, without warrant of law. The defendants filed a motion to dismiss on the ground that it was an original proceeding, and that the Supreme Court had appellate jurisdiction only. It was contended that the writ of quo warranto, as well as the other writs named in the Constitution in connection with the powers of the Supreme Court, were to be used only in connection with its appellate jurisdiction. In considering the motion the court, per Smith, J., discussed the sections of the Constitution conferring jurisdiction upon the Supreme Court.

The learned judge first considered the phrase, "The Supreme Court, except in case otherwise provided in this Constitution, shall have appellate jurisdiction only, which shall be co-extensive with the state." He held that said clause can hardly be said to be a grant of power; its import is to restrict rather than to confer power. It would seem that in the mind of the framer of the sentence was present the idea of a tribunal whose powers, without such restrictive phrase, would be more ample than the policy of the state or the convenience of the government would require or sanction, and words of limitation were essential and necessary; that the expression "Supreme Court," ex vi termini, carried with it an idea of jurisdiction more ample and general than the policy of the government about to be formed, should permit to remain in that court, and hence in the very first phrase of the section the author of the provision commences with the words of limitation. The court then considered the second clause of the section,


"The Supreme Court shall have a general superintending control over all inferior courts." Concerning this phrase. Smith, J., says:

"This sentence contains a clear grant of power. We will not undertake to say that without this grant the power would not be in the court. It is not necessary to discuss that question. We are endeavoring to arrive at the proper construction of the written law. It is a grant of power. It is unlimited in extent. It is undefined in character. It is unsupplied with means and instrumentalities. The Constitution leaves us wholly in the dark as to the means of exercising this clear, unequivocal grant of power. It gives, indeed, the jurisdiction, but does not pretend to intimate its instruments or agencies. How then is it to be exercised? By means of the writs of habeas corpus, mandamus,

quo warranto, injunction and certiorari? Are these the writs adapted to the exercise of a "general superintending control over inferior courts?" It is barely possible that some one of them might be adapted to such a function in some specific case; but weighty, powerful and imposing as such an armor is, it is no more adapted to the exercise of a "general superintending control over inferior courts" than would have been the spear of Goliath to the siege of Acre. What, then, are the means, instrumentalities and agencies by which this power is to be exercised? Clearly the means provided by the common law, or such as should be supplied by legislative enactment. The very force of the term, "Supreme Court," comprehending, naming, instituting the highest, the dernier judicial tribunal known to and recognized by the common law, necessarily carries with it all the writs, instrumentalities, powers and agencies provided by the common law for the convenient and complete exercise of such superintending control. It is idle to say that the enumeration of such writs as are mentioned were made to supply such means of superintending control."

The court then proceeds to discuss the third clause of the section with reference to the named writs, and say that:

"Here also is a distinct grant of power. The first clause of the section is restrictive, one of limitation merely. The two last are clear grants of power, the one giving the power of superintending control over all inferior courts, the other giving the power to issue certain writs in appropriate cases, and to hear and determine the same. The only question to be considered is, whether or not the power to issue the writs named is merely auxiliary to the other powers. This question is to be deter


"First, from the language employed, and, second, from the nature of the writs themselves.

"First, from the language employed. In the whole section it is apparent that each clause of the section is to be construed by itself. The first is one of limitation, the second is one of grant. The third also is one of grant, but of a grant of jurisdiction not in any way necessarily connected with the subject and matter of the former grant; but of jurisdiction over a peculiar class of writs."

The court then takes up the nature of the named writs specifically and holds that none of them, with the exception of cer

tiorari and to a modified extent mandamus, were ever used to operate directly upon courts, and were not adequate to enforce the power of superintending control, and that therefore the court had jurisdiction over the writs named in the Constitution, and other like writs as a power independent either of its appellate jurisdiction or of its jurisdiction of superintending control.

Chief Justice Ryan, in delivering the opinion of the Supreme Court of Wisconsin in the case of the Attorney General vs. Railroad Companies, 35 Wis., 425, in which the principal question before the court was whether or not the Supreme Court could use the writ of injunction except as ancillary to its appellate powers, decided that under the language of the Wisconsin Constitution, which is similar to our own in that regard, the writ of injunction could issue from the Supreme Court under its original jurisdiction, in cases involving matters of great and general public interest, in which the whole state was concerned.

In discussing the case and the sections of the Constitution, conferring jurisdiction on the Supreme Court, that eminent judge had occasion to refer to the power of superintending control, using this language:

"The framers of the Constitution appear to have well understood that with appellate jurisdiction the court takes all common law writs applicable to it; and with superintending control, all common law writs applicable to that; failing adequate common law writs, the court might well devise new ones, as Lord Coke tells us as 'a secret in law.' Hence the Constitution names no writ for the exercise of the appellate or for the superintending jurisdiction of the court. But the original jurisdiction depends on the writs given, and hence the group of specific writs. The injunction given, mean what it may, appertains therefore to the original jurisdiction of the court."

The learned jurist then proceeds to define the original jurisdiction of the court over the writ of injunction as applying to cases only in which questions of great public interest were involved; in other words, that it should be treated as a quasi prerogative writ, since the other writs mentioned, with which it was placed in juxtaposition in the Constitution, were originally, as adopted in England, purely prerogative writs.

The Supreme Court of Colorado has had occasion in three cases to specially refer to the power of superintending control.

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