Robertson v. State ex rel. Smith

Elliott, C. J. On the 12th day of January, 1887, the-relator, Alonzo G. Smith, filed an information against the appellant, praying an injunction against him restraining him “from intruding, or attempting to intrude, himself into the office of Lieutenant-Governor,” and for a judgment of ouster, “ excluding him ” from that office. The relator’s information alleges, that, on- the 4th day of November, 1884, the relator was duly elected a member of the Senate of the General Assembly of the State of Indiana ; that he duly qualified, and that on the 13th day of April, 1885, he was chosen President of the Senate ; that he accepted the office, and entered on the discharge of its duties; that upon the assembling of the Senate in Januaiy, 1887, he was reelected President of that body, and was in possession of that office at the time the information was filed. It is also alleged — 80 — that Mahlon D. Manson was elected to the office of Lieutenant-Governor in November, 1884, and that, having qualified, he held that office until July, 1886, when he vacated it by accepting a Federal office ; that, on the 2d day of November, 1886, at the general election then held, a majority of the voters of the State, assuming that a vacancy existed in the office of Lieutenant-Governor, were procured to vote for the respondent for that office; that returns of the vote, regular in form, were made by the proper officers; that such returns were duly certified to the secretary of state, and that certified • statements of the vote were duly delivered to the Speaker of the House of Representatives. It is further alleged, that, on the 10th day of January, 1887, the Speaker of the House of Representatives opened and published the returns in the presence of the members of the House of Representatives, the •Senate not being present, nor in session at the time; that the ■Speaker declared that the respondent had received a majority of the votes cast at the election, and had been duly elected Lieutenant-Governor; that the respondent thereupon took the oath of office, and unlawfully intruded into the office by attempting to exercise its functions and duties, and that the Speaker of the House recognized him as the Lieutenant-Governor of the State. The information also avers that the respondent claims the right to exercise the functions of the office of the President of the Senate, and is unlawfully interfering with the rights of the relator as such officer, and that the Senate, by a majority of its members, supports the claim of the relator to be the presiding officer, while the House of Representatives, by a majority of its members, sustains the •claim of the respondent. Summons was issued and served on the appellant, and a temporary restraining order was granted enjoining him from -attempting to perform any of the duties of the office of President of the Senate. From this order the appellant appeals. ' On the 13th day of January, 1887, the appellant entered special appearance, and filed a verified plea denying the ju — 81 — xisdietion of the court, alleging in his plea that he had never been a resident or inhabitant of Marion county, but was, and had been for more than twenty years, a resident and citizen of the county of Allen. The appellee demurred to this plea, and his demurrer was sustained. The question at the threshold is this: Had the circuit court ' jurisdiction to hear and determine the cause ? If that court had no power over the cause, this court, of course, has none. Two things are absolutely essential to the power of a court to decide a legal controversy, jurisdiction of the subject-matter and jurisdiction of the person. Both must exist; otherwise it is the imperative duty of the court to decline to do more than ascertain and declare that it has no power to examine or decide the merits of the controversy. Authors and ■courts agree upon this rudimentary principle of law. Neither in reason nor upon authority can there be a doubt ás to its soundness. Power is essential to the validity of every act, judicial, legislative or executive. Where there is no power .to hear and determine there can be no judicial decision. Expressions of individual opinion there may be, but a judicial judgment there can not be. A judicial judgment is the product of power, the power of the law, and is not the mere expression of the individual opinion of a judge. The question is purely and intrinsically one of power, for the jurisdiction of a court consists solely in its power to hear and determine the causes brought to its bar. If jurisdiction does not exist, power is absent, and if power is lacking, an expression of opinion upon any other than a jurisdictional .question, although judicial in form, is simply the opinion of its author, valuable it may possibly be as an argument, but effective as the opinion of the court, it is not. “ Jurisdiction,” says a recent writer, “ is the right to pronounce judgment acquired through due process of law.” .Herman Estop, and Res Judicata, section 69. At another place this writer says: “ Jurisdiction is authority to hear and — 82 — determine.” Ibid., section 73. Again, speaking of the court, he says: “ It must act judicially in all things, and can not then transcend the power conferred by the law.” Ibid. In Mills v. Commonwealth, 13 Pa. St. 627, the court said: “Jurisdiction in courts is the power and authority to declare the law. The very word in its origin imports as much. It is derived from juris and dioo. I speak by the law.” Chief Justice Shaw said: “ To have jurisdiction is to have power to inquire into the fact,'” and “ to apply the law.” Hopkins v. Commonwealth, 3 Met. 460. Chief Justiee Marshall, speaking upon a kindred subject, said: “Judicial power, as contradistinguished from the power of the laws, has no existence. Courts are the mere instruments of the law, and can will nothing.” Osborn v. U. S. Bank, 9 Wheat. 738, 866. In re School-Law Manual, 4 Atl. Rep. 878, the Supreme Court of New Hampshire declared that where there was no jurisdiction, it was not only the duty of the court not to express an opinion, but it was its duty not to have an opinion on the merits of the cause. The Supreme Court of Texas, in Withers v. Patterson, 27 Texas, 491, said: “The jurisdiction of a court means, the power or authority which is conferred upon a court, by the Constitution and laws, to hear and determine causes between parties, and to carry its judgments into effect.” These are a few, only, of the many statements that abound' in the books and reports and declare, what all must concede-to be, the lav/ of the land. Accepting these statements as correct, then, the conclusion must be, that where there is no jurisdiction there is no power. No consideration can be imagined, nor reason conceived, which will justify a court in assuming to pronounce a judgment where it has neither the right nor the power to hear or decide. It is only where courts can speak by the law, that they can rightfully speak at all. An expression of opinion by a judicial tribunal, where it has no power to speak by the law, is utterly devoid of force. A decision without jurisdiction is a judgment only in form, — 83 — for it is absolutely and everywhere void. The author from, whom we have quoted says: “ If a court has no jurisdiction its decision is a nullity, and it matters not what facts it finds, or what questions it decides—in fact they are all nullities. If without jurisdiction it can not adjudicate the real merits of the case, it can not adjudicate any other question, whether it be introductory, incidental, or collateral.” Herman Estop., etc., section 68. Another author says : “ Where there is no jurisdiction, it does not belong to the proper functions of a court to give an opinion upon a matter submitted to them, for the guidance of parties or inferior tribunals. * * * * The whole business of a court is confined to giving decisions in cases properly before it.” Wells Jurisdiction, 10. In Elliott v. Peirsol, 1 Peters, 328, the Supreme Court of the United States said, in speaking of a court: “ But if it act without authority, its judgments and orders are regarded as nullities.” Our riwn court has decisively affirmed this elementary doctrine. Smith v. Myers, ante, p. 1. The only course which a court can rightfully pursue is to decline to speak in all cases where it can not speak by the law. It is not a matter of choice; it is a matter of duty. The duty is as solemn and imperative as any one among all the grave duties that rest upon the courts of the country. Nor ought the courts to give opinions which are in form judgments, but in reality mere phantomatic resemblances, since, in more ways than one, such a course is productive of evil. To the judicial department, as the most conservative of all the co-ordinate branches of the government, is entrusted the high duty of declaring and enforcing the law as it exists, and upon the officers of that department rests, more strongly than upon the officers of the other departments, the solemn obligation to unwaveringly abide by the established principles of law. A great and important part of the duty of the courts is to compel citizens and officers to obey the rules of law, and they can not, upon any imaginable ground, be themselves excused for violating those principles. It is the plain and — 84 — solemn duty of the courts to apply to themselves the rules which they enforce against others. Courts, most of all the instruments of the law, should sternly refuse to transgress its rules. It is an established principle of law, long settled and firmly maintained, that a court will not decide any question affecting the merits of a case over which it has no jurisdiction, and no court can, without a plain and inexcusable breach of duty, violate that principle. No one thing in all jurisprudence can be of higher importance than that the judiciary should inflexibly adhere to the law as it comes from the hands of the law-makers. The question upon the facts stated in the appellant’s plea is, whether there was any jurisdiction in the circuit court over the person of the appellant’s person ? not whether there was a defect in its process, or an irregularity in the service of its writs? There is no middle ground; there is either complete jurisdiction, or an utter want of jurisdiction. If, upon the facts stated in the plea, the law is that the appellant may be sued in Marion county, there is plenary jurisdiction. If the law is that he can not be there sued, then there is an absolute want of power to proceed a single step against' him. It is either power or no power. The court can not look beyond or outside of the record, and on the record the question is, was there any j urisdietion at all ? It is enough for the decision of this case to affirm that there was no jurisdiction of the person of the appellant. It is not necessary, nor, indeed, proper, to decide any other questions than those of jurisdiction. The want of jurisdiction of the person is fatal to the right to go further into the cause. It is an elementary rule, that, without jurisdiction, there is no validity or vitality in any judgment, for, to give the slightest vitality to the judgment, there “must be jurisdiction of the cause and of the person.” Herman Estop., etc., section 54. As there was no jurisdiction of the person, this cause can not, in any event, go back to the co-urt from which it came for trial, but it goes back there only to be east out. — 85 — Jurisdiction of the person of the appellant could only have been acquired in an action brought in the county of Allen, where he resided. Section 312, R. S. 1881, governs this case, for it does not fall within the provisions of any other section. That section reads thus: “ In all other cases, the action shall be commenced in the county where the defendants, or one of them, has his usual place of residence.” This language is broad and comprehensive in its scope, and mandatory in its effect. It is the positive command of the law that all actions, except those otherwise provided for, shall be brought in the county where the defendant resides, and there is no authority to bring them elsewhere. It is not within the power of the court to create an exception. That would be judicial legislation, and judicial legislation is always odious, for legislation by the courts is usurpation. There is no escape from the command of the statute, and it is the duty of the courts to enforce it; they have no discretion to change it, nor have they power to take a case out of its operation. They must apply the law, as it is written in section 312, to all cases for which a different provision has not been made by the Legislature. If the law is faulty the Legislature, and not the courts, must amend it, for the courts have no authority to change a line or a word, since there is neither ambiguity nor obscurity. Section 1132 does not impair the force or effect of the section under immediate mention. The provision of section 1132 is, that an information may be filed by the prosecuting attorney of the circuit court “in the proper county,” and “ the proper county ” can only be ascertained by exploring the statute. It is to the law, and to the law alone, that we can look to ascertain what is “the proper county,” and the law informs us that “ the proper county ” is the county of the defendant’s usual residence. The “ proper county ” can only be the county where the law authorizes actions to be instituted, for no other county can with accuracy or propriety be said to be “ the proper county.” — 86 — Our cases have uniformly held that all actions, except those for which express provision is made, must be brought in the county where the defendant resides. A forcible example is supplied by the case of State v. White Water, etc., Co., 8 Ind. 320, which was an action to compel, by mandate, the rebuilding of a bridge in Dearborn county. The court held that the action must be brought in Fayette county, where the defendant resided, saying, among other things: {! But it is assumed that the present action is local in its nature, and must be brought in the county where the duty sought to be enforced is to be performed. The code points out and defines the subject-matter of all the actions which must be instituted in the county in which the subject of the action, or some part thereof, is situated. But the case at bar does not seem to be within the definition.” Hawley v. State, ex rel., 69 Ind. 98, strongly enforces the same general doctrine. That was a prosecution for bastardy, and it was held that it must be instituted in the county where the defendant resided, the court saying: “ Such proceedings, being transitory in their character, must, under the code, be commenced in the county in which the defendant resides when he is a resident of the State.” In other cases the court has asserted the policy of the statute to be, what, indeed, its language plainly imports, to require all actions, not expressly otherwise provided for, to be brought in the county where the defendant resides. Hodson v. Warner, 60 Ind. 214; Boorum v. Ray, 72 Ind. 151; Robbins v. Alley, 38 Ind. 553; Ewing v. Ewing, 24 Ind. 468; Michael v. Thomas, 24 Ind. 72; McCauley v. Murdock, 97 Ind. 229; State, ex rel., v. Board, etc., 49 Ind. 457; Coleman v. Lyman, 42 Ind. 289. It must, therefore, be deemed the settled law of this State, that all actions must be brought in the county where the defendant resides, except such as the statute expressly provides shall be brought elsewhere. It is assumed that this is not strictly a civil action, but is — 87 — a special proceeding, and is not governed by section 312, E. S. 1881. But it lias been expressly ruled that such a proceeding as this is a civil action. In Reynolds v. State, ex rel., 61 Ind. 392, the question came directly before the court, and in deciding it the court said : “ It is clear, we think, from this section of the code, that an information in the nature of a quo warranto, in this State, is a civil action.” If, however, it were conceded that the position of the appellee is tenable, still, it would by no means result that section 312 does not apply, for it is now quite well settled that the provisions of the code do apply to all proceedings, whether under special statutes or not, unless excluded by the proviisions of those statutes. Evans v. Evans, 105 Ind. 204; Bass v. Elliott, 105 Ind. 517, and cases cited; Burkett v. Holman, 104 Ind. 6; Burkett v. Bowen, 104 Ind. 184; Powell v. Powell, 104 Ind. 18. Statutes are to be regarded as forming parts of one great .and uniform body of law, and are not to be deemed isolated and detached systems complete in themselves. Humphries v. Davis, 100 Ind. 274 (50 Am. E. 788); Lutz v. City of Crawfordsville, post, p. 466. It would be a departure from principle to declare that each t: special proceeding” is complete in itself, and it would be a departure productive of serious evils, for scarcely one of all the 11 special proceedings ” can be carried into practical effect without aid from the code of civil procedure. It is necessary in almost, if not quite, every instance, to refer to the provisions of the code in order to give any effect to these special proceedings, and certainly this must have been intended by the Legislature, for had it undertaken to make ■each system complete in itself, many ponderous volumes of statutes would have been required. It is the judgment of this court that the circuit court had no jurisdiction to grant the order of injunction, and that, •upon the facts set forth in the appellant’s plea, that court had no jurisdiction of the person of the appellant. — 88 — Filed Feb. 23, 1887. The cause is remanded, with instructions to dissolve the restraining order, and for further proceedings in accordance with this opinion. • Dissenting Opinions of Mitchell and Howk, JJ.