Territory ex rel. Galbraith v. Chicago, R.I. & Pac. Ry. Co.

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Territory ex rel. Galbraith v. Chicago, R.I. & Pac. Ry. Co.
1894 OK 56
39 P. 389
2 Okla. 108
Case Number: ___
Decided: 06/29/1894
Supreme Court of Oklahoma

TERRITORY ex rel. GALBRAITH, Attorney General

Mandamus on the relation of C. A. Galbraith, attorney general, plaintiff, against the Chicago, Rock Island & Pacific Railway Company, defendant. Dismissed.

Curran & Campfield, Caldwell & Whittinghill, and T. W. Wampler, for petitioner.

M. A. Low, John I. Dille, and Harper S. Cunningham, for defendant.


¶1 This case, being a proceeding for mandamus in this court, with the history of which we are all somewhat familiar, is now before this court upon the motion of the relator for a commissioner to take testimony, and upon the objection of the respondent to the appointment of such commissioner, and the application of the respondent for a trial by jury. If the question as to whether or not the parties are entitled to a jury is settled in the affirmative, it follows that this court has not the power to appoint a commissioner to take testimony, over the objection of the party demanding the right of trial by jury, and the decision upon the question of a right to a trial by jury will settle the other proposition involved. In mandamus proceedings it is found by an examination of the authorities, and it seems to be well settled, that such an action; was a common-law action; and in some states of the Union, under Codes similar to ours, it is held that, where an issue of fact is raised on the pleadings, either party may have a trial by jury. The supreme court of Kansas, so fast as we have been able to determine by an examination of the authorities, has not passed upon this question directly. This writ anciently was a high prerogative writ, but in the states of this Union, and under the decision of the supreme court of the United States, this action has lost to a considerable extent its ancient characteristics. It is not now considered, in most of states of the Union, as anything more than a civil action; and in the procedure governing the trial of causes such procedure is assimilated, as nearly as possible, to the Codes of the several states, and is treated as a civil provision-as an ordinary civil action-in most of the states. The only features now possessed by this proceeding in common with those originally possessed are the features which grant to the court the discretionary power of issuing the alternative or peremptory writ of mandamus and bringing the parties into court. In the case under consideration, an issue of fact has been squarely joined by the return to the alternative writ. As we view the authorities, such issue of fact can be tried by a jury, and, under most of the Codes, the states which have passed upon this question-in fact, I recall but one now-hold that a trial by jury is a matter of right, rather than discretionary upon the part of the court. But this court, in passing upon the question presented to it on yesterday, as to whether or not the court would consider this a case which should be governed by the rules of pleading as laid down by the Code, held to the view that this is such an action as that where issues were joined in accordance with the provisions of the Code relating to the trial of the civil actions in the district court; and in that decision this court practically held that, in mandamus proceedings, as well as in any other proceedings of a civil nature, the rules of practice, as laid down for the trial of causes in the district court, should govern in this court in such cases. Therefore we are of the opinion that a trial by jury may be had in this cause; that the parties are entitled, as a matter of right, to a trial by jury in mandamus proceedings, where an issue of fact is joined.

¶2 This leads to the next proposition, as to whether or not a trial by jury can be had in the supreme court of this territory. Upon that question the court has concluded that, inasmuch as no machinery has been provided for the calling of a jury in the supreme court, it would be the exercise of doubtful power for this court to prescribe rules and regulations and a line of procedure for the calling of a jury in the supreme court and the trial of causes in such court by a jury, and we have agreed that no juries will be called for the trial of causes in the supreme court. In considering this question, we have come to that conclusion in this case, for the reason that a denial of a trial by jury will not prejudice either party; that a trial can be had by jury in the district court at an early day; and we have an enormous amount of work now pending in this court, which will require all of the time and attention of this court that it can devote to it. We make that suggestion at this time to the relator, holding that while the parties may have a trial by jury in this character of a case in this court, no machinery has been provided for a trial by jury in the supreme court; and we leave this matter with the relator, with this suggestion, for such further action in the premises as may be deemed proper, in order to protect whatever rights the relator may have.

¶3 It is suggested by Justice SCOTT that a motion to dismiss would be entertained by the court; that, inasmuch as the trial cannot be proceeded with in this court, this decisions settles the further proceedings in this court in this case.

¶4 BIERER, J. I desire to say in this matter that I came to the conclusion which is adopted by the court with a great deal of reluctance. It seems to me a rather harsh rule to say that a party may come to this forum with his grievance, in order to have it adjusted and judicially determined by the court, and at the same time say that when the other party has filed an answer which puts in issue certain facts, which may be true or not true, and upon that demands a jury, by reason of the fact of such answer and such issue and such demand for a jury the plaintiff must go out of court, and not have the matter determined. However, the organic act gives to this court original jurisdiction in mandamus proceedings in such cases as are provided by law, and, if the law makes no provision by which the action of mandamus may be determined in the usual method provided for such cases, a case of this character,-then there is no jurisdiction of mandamus in such cases provided by law, because the law has not provided a means by which that action can be determined. The defendant has a right, as we have all determined, to make such a response-such return-as that which is made; he has a right to make an issue of fact as in all other civil actions. The action being one at law, and being one that under our Code is termed a "civil action," the same as all other civil actions, and the right of trial by jury being given in such actions, the defendant also has an absolute right of trial by jury, which we cannot deny.

¶5 We come, then, to one of two propositions, as to the seemingly harsh method of depriving the plaintiff of his right in the case of proceeding further, or of denying to the defendant the right which he absolutely has of a trial by jury, because there are no means provided by law whereby a jury can be provided in this court. The legislature has been at fault in that particular, and it is not for the courts to remedy the defect by judicial legislation. That we could not do. Now, the plaintiff, in that state of the legislation, when he comes into the court, takes the chances of such issues being made as will, under the law, deprive him of his right to finally proceed with the case, and have it determined there. We therefore come to this conclusion: That the cause cannot further proceed in this court, because such issues are made as upon which the parties have a right to a jury trial, and, no means being provided by the legislature by which this court can secure a jury, the cause must come to an end.

¶6 BURFORD, J. I would like to say, in addition to what the Chief Justice has said, that, in reference to the trial of jury cases in this court, I have no question but what, when congress gave to the supreme court of this territory the power, or, rather, the jurisdiction, to try and determine mandamus proceedings, that carried with it whatever powers-whatever authority-belonged to that character of a case. If at common law there was a jury case, which the court has held, and on which I think there is no question, then this court would have the right to try by jury; but we are left largely, in the conduct of our business in this court, to the acts of the legislature of the territory. The organic act has given this court no executive officers, no sheriff, or no marshal, as in most of the states some officer is possessed with power to serve the process of this court. The court has, no doubt, the inherent power to appoint a person or to designate some other officer for that purpose. The chief difficulty, it seems to me, lies in the fact that this court has no funds at its command and none from which it can draw. The law of this territory provides that the jury shall be drawn from the county in which the court is held, and that the jurors shall be paid out of the public treasury of the county in which the court is held. There certainly is no power in this court, under our statutory power, at least, as prescribed by the territorial legislature, to draw upon the funds of Logan county to pay a jury in a case of this character. This court sits for the territory at large; it does not sit for Logan county; and it would be very harsh upon the county where the capital might be, or where the supreme court might have its sitting, to hold that such county would have to bear the expense of all the juries had in the supreme court. There being no funds at our hand with which we can pay supreme court jurors, the difficulty confronts us than while we may have the power to try by jury, as suggested by the Chief Justice, we are left without machinery for securing a jury. We have no authority for drawing a jury, unless we resort back to the common law, and secure a jury by open venire, and then we have no officer to execute our process, and a number of difficulties present themselves. The power to draw a jury seems to be left in the authority or jurisdiction to try these causes, yet we have not been supplied by any provision or authority by the legislature by which we can secure a jury or pay one. Another difficulty might arise in securing the attendance of witnesses, in issuing and serving process. These matters can all be remedied by the legislature. It is the purpose of the legislature that this court shall be a jury court which would be, as well suggested, a detriment to public business, this being an appellate court; yet if this power is given us we are willing to exercise it, if we are given the process by which we can carry it into proper effect.