Walker v. New Mexico & Southern Pacific Railroad

Fall, J. Plaintiff in error sued defendant for damagesforinjury to real property caused by defendant’s railroad embankment stopping or obstructing natural or artificial channels through which water was accustomed to flow, thereby overflowing and damaging plaintiff’s land. General verdict was for plaintiff, but, upon answers to special questions propounded, the court set aside the verdict, and entered judgment for defendant. Two errors are assigned: (1) That the court erred in entering judgment in favor of the defendant on the verdict of the jury; (2) that the court erred in refusing to enter judgment in favor of plaintiff in error. constitutional. ry7 special ver1'" dicls' If the act of the territorial legislature of 1889 is constitutional, then we can find no error in the action of the court in setting aside the general verdict, and entering judgment upon the special findings. But it is contended strongly that the act referred to is unconstitutional, in that it is in conflict with article 7 of the amendments to the constitution of the United States. The act of 1889 is as follows: “Section 1. In all trials by jury in the district courts, the court shall, at the request of the parties, or either of them, or their counsel, in addition to the general verdict, direct the jury to find upon particular questions of fact to be stated in writing by the party or parties requesting the same. Sec. 2. When the special finding of facts is inconsistent with the general verdict, the former shall control the latter, and the court shall give judgment accordingly.” Mr. Justice Miller, in his lectures on Constitutional Law (page 493), speaking of article 7 of the amendments, says: “This article of the amendments to the constitution * * * applies to the powers exercised by the government of the United States, and not to those of the states;” and, as further stated by the same eminent ■writer, this has been repeatedly decided. Livingston v. Moore, 7 Pet. 469; The Justices v. Murray, 9 Wall. 274; Edwards v. Elliott, 21 Wall. 532; Fox v. Ohio, 5 How. 434. Our territorial courts are not constitutional courts, “in which the judicial power conferred by the constitution or the general government can be deposited.” Miller, Const. U. S., p. 369; McAllister v. U. S., 141 U. S. 174, 11 Sup. Ct. Rep. 949; Insurance Co. v. Canter, 1 Pet. 511-546; Clinton v. Englebrecht, 13 Wall. 434. The powers of the territorial legislatures are nearly as extensive as those exercised by state legislatures. Hornbuckle v. Toombs, 18 Wall. 654. And, indeed, if this article prohibits such legislation by a territory, the prohibition applies equally to state legislation. We are clearly of the opinion that the act of 1889 was passed by the legislature in the legal and constitutional exercise of its powers, and is with us the “law of the land.” It might be well to add that we think the act should be so construed as to enable the court, in its discretion, to refuse to submit questions not regarded as material, and, further, to refuse to set aside a verdict if it is possible to reconcile the special findings with the same. It should also refuse to set aside the general verdict unless the special findings upon all the material facts in issue, construed together, can not be reconciled with it. The judgment below is affirmed. O’Bbien, C. J., and Lee and Seeds, JJ., concur.