Littleton v. Burgess

Potter, Justice. This case, which was here on reserved questions, was submitted on the motion of defendant that further consid [266] eration be discontinued and the papers returned to the District Court. The chief ground of the motion, viz: that the court is without jurisdiction, is the only one that need be considered. The order of the District Court of Sheridan County reserving the questions is as follows: “This cause having come on for hearing on the 22d day of September, A. D. 1904, upon the petition and motion to dissolve the temporary restraining order issued herein, supported by affidavit of the defendant, in which he justifies the acts complained of, as alleged in the petition, by proceeding ag'ainst the defendant under Chapter 65, Session Laws of Wyoming of 1901, for violation thereof, which said law the plaintiff alleges is in contravention of Sections 24 and 26 of Article 3 of the Constitution of Wyoming, and is void, and upon issue thus joined the same having been heard, and arguments of counsel heard, and the same having been submitted to the court for its decision, the same was by the court taken under advisement. And now, on this 16th day of December, 1904, the same being a da}' of the regular December, A. D. 1904, term of this court, this cause coming on for further hearing and consideration, the court finds that important and difficult constitutional questions have arisen in this action and proceeding- pending before this court, wherefore it is ordered, adjudged and decreed by the court, upon its own motion, that this action and proceeding be, and the same is hereby, reserved and sent to the Supreme Court of this state for its decision upon the following constitutional questions Which have arisen herein, the plaintiff and the defendant each to pay one-half of the docket fee in the Supreme Court.” (The questions are'then stated.) That order is the source of the jurisdiction of this court in the premises; and it is apparent that the only matter referred to therein as before the court for determination, when the order was made, was the motion to dissolve the temporary restraining order. As we understand the order, [267] the motion to dissolve had been submitted in September, and, without deciding it, the court, on December 16, reserved certain questions deemed to have arisen on that motion. If any other matter had been submitted to the court it is not stated. The term of office of Judge Stotts, the presiding judge of the court when the order was made, expired January 2, 1905, and he was succeeded by Judge Parmelee. It appears that thereafter, upon a motion for change of judge filed by the plaintiff, Judge Scott of the Pirst District was called in to sit in the case; and that op January 10, 1905, the court, Judge Scott presiding, entertained a new motion to dissolve the temporary restraining order, and sustained it; and it was then ordered that the injunction and temporary restraining order be vacated, set aside and dissolved; and an exception was reserved thereto by plaintiff’s counsel. As appears by the petition in the cause, the sole purpose of the suit is to enjoin the defendant, who is Prosecuting Attorney of the county, from prosecuting and causing the arrest and imprisonment of the plaintiff for alleged violations of the act of 1901 prohibiting and punishing gambling. The plaintiff claims that said act is void, and that he is protected by virtue of a license issued b) the town of Sheridan. A temporary restraining order was issued August 20, 1904, and it is evident that, as it seems to have been the only restraining order issued in the action, it was the one sought to be dissolved by the motion submitted to the District Court in September,- 1904, and by the motion sustained January to, 1905. And it is clear that, by the order of January to, such restraining order was vacated and dissolved. It is apparent, therefore, that whatever questions properly arose upon a consideration of the motion to dissolve have been disposed of in the District Court, and that, so far as the record discloses, the questions reserved for the decision of this court are not now involved in the determination of any matter now before the District Court. [268] And hence such questions as they now stand are purely abstract questions, and while our consideration of them might perhaps affect some matter to be submitted to the District Court in the future, it could not aid the court or affect any question which it has before it for determination. According to the principles announced in previous decisions, it would not only be improper for us to decide the questions, but we are without jurisdiction to do so. (Foote v. Smith, 8 Wyo., 510; State ex rel. v. Board, 7 Wyo., 161.) It is suggested by counsel for plaintiff that the court had taken under advisement a demurrer to the petition prior to entering the reservation order, and that it has not been decided, and-that the reserved questions are involved in a consideration thereof. It is true that a demurrer appears .to have been filed September 22, 1904, but the record does not show that it was ever submitted to the court. But had it been submitted, it is not perceived that it would authorize us to consider the reserved questions, since the District Court found them to arise, not on the demurrer, but on the motion to dissolve. The motion to discontinue in this court will be sustained, and the papers ordered returned to the District Court. Dismissed. BEARD, J., concurs.