# Clough v. Curtis/Opinion of the Court

* Court Documents
* Case Syllabus
* Opinion of the Court
United States Supreme Court
134 U.S. 361
Clough v. Curtis
Certain questions of jurisdiction raised by the appellees must be first examined. It is contended by them that the supreme court of Idaho has no original jurisdiction, and that, if it had, no appeal lies from its judgment in this case. Neithe of these propositions are sound. The Revised Statutes of the United States expressly declare that the jurisdiction, both appellate and original, of the courts of Idaho, 'shall be limited by law.' Section 1866. And by section 3816 of the Revised Statutes of Idaho it is provided that the jurisdiction of the supreme court of that territory shall be original and appellate, and that 'its original jurisdiction extends to the issuance of writs of mandate, review, prohibition, habeas corpus, and all writs necessary to the exercise of its appellate jurisdiction.' Of the power of the legislature of Idaho to confer original jurisdiction upon the supreme court of the territory in such cases there can be no doubt. Its power extends to all rightful subjects of legislation not inconsistent with the constitution and laws of the United States. Rev. St. U.S. § 1851. The jurisdiction of the several courts of the territory is a rightful subject of legislation, and the above provision is not inconsistent with the constitution or any act of congress.
It is contended, however, that the provision that each of the district courts in certain territories, including Idaho, 'shall have and exercise the same jurisdiction, in all cases arising under the constitution and laws of the United States, as is vested in the circuit and district courts of the United States,' (Id. § 1910,) confers original jurisdiction, in cases of that character, only upon the territorial district courts. But that section is not to be so interpreted. It does not forbid the legislature from giving original jurisdiction to the district courts of the territory in cases other than those therein named. Accordingly, by the Revised Statutes of Idaho the jurisdiction of the district courts of the territory is extended to all civil actions for relief formerly given in courts of equity; in which the subject of litigation is not capable of pecuniary estimation; in which the subject of litigation is capable of such estimation, and which involve the title or possession of real estate, or the legality of any tax, unjust assessment, toll, or municipal fine; to all special proceedings; to the issuing of writs of mandate, review, prohibition, habeas corpus, and all writs necessary to the exercise of its powers, and to the trial of indictments. Rev. St. Idaho, § 3830. Nor does section 1910 of the Revised Statutes of the United States forbid the territorial legislature from conferring original jurisdiction upon the supreme court of the territory in cases named in section 3816 of the Revised Statutes of Idaho, although such cases may depend upon questions arising under the constitution or laws of the United States. If congress had intended to confer upon the district courts of the territories named exclusive jurisdiction in the class of cases named in section 1910, it would have so declared in express terms.
This question has been adverted to because the jurisdiction of this court to review the judgment below depends upon the inquiry whether the present case is embraced by section 2 of the act of March 3, 1885, authorizing this court, without regard to the sum or value in dispute, to review the judgment or decree of the supreme court of a territory, in any case in which is drawn in question the validity of an authority exercised under the United States. 23 St. 443, c. 355. Do the cases now before us raise any question as to the validity of an authority exercised under the United States? We are of opinion that they do. By the Revised Statutes of the United States, the legislative power in each territory is vested in the governor and a legislative assembly, the latter to consist of a council and house of representatives. Section 1846. The alternative writ of mandamus proceeds upon the ground that a body of persons claimed, but without right, to be, respectively, the lawful council and house of representatives of the territory, usurped the legislative power conferred by congress upon the legislative assembly of the territory, and pas ed enactments purporting to be laws of such territory. In each case is directly drawn in question the lawful existence of those bodies as the council and house of representatives of the territory, and, consequently, the authority which they have assumed, as the legislative assembly of the territory, to exercise under the United States. In this respect the present case differs from Railroad Co. v. Hopkins, 130 U.S. 210, 225, 9 Sup. Ct. Rep. 503, upon writ of error to the supreme court of the District of Columbia. In that case it was held that the words in the act of March 3, 1885, (23 St. 443, c. 355,) the validity of a 'statute of or an authority exercised under the United States,' do not embrace a case which depends only on a judicial construction of an act of congress, there being no denial of the power of congress to pass the act, or of the right to enjoy whatever privileges are granted by it. The case now before us is within the very letter of the act of 1885, because there is drawn in question the validity of an authority exercised under the United States. Clayton v. Utah Territory, 132 U.S. 632, 637, ante, 190. It is, consequently, our duty to inquire whether the court below erred in withholding the relief asked by the petitioners.
It is clear that such relief cannot be granted without deciding that the body over which George P. Wheeler presided was not the lawful house of representatives; that the one over which S. F. Taylor presided was not the lawful council; and that the minutes filed with the secretary of the territory, purporting to be the record of the proceedings of the last day of the fifteenth session of the legislature, were not true minutes of that day's session prior to its legal termination, but were, in part, minutes of the proceedings of persons who did not constitute the council and house of representatives of the territory. Those facts being determined in favor of the petitioners, the court is, in effect, asked to take these minutes into its own custody or under its control; to cause them to be corrected in accordance with the facts as alleged by the petitioners to exist; to order them, after being thus corrected, to be filed in the office of the secretary of the territory, as the only true records of the legislative proceedings in question, and to require that officer to expunge from the files and records of the laws of the territory the acts passed while Taylor and Wheeler assumed to be the presiding officers, respectively, of the council and house of representatives of the territory. And this relief, it is to be observed, is not asked by any one claiming to have a beneficial interest in defeating or in sustaining the enactments passed by the two bodies alleged to have usurped the functions of a legislative assembly. Rev. St. Idaho, § 4978.
We are all of opinion that there was no error in denying these applications for writs of mandamus. We have not been referred to any adjudged case that would justify a court in giving the relief asked by the petitioners. And we do not suppose that such a case can be found in any state whose powers of government are distributed-as is the case in the territory of Idaho-among separate, independent, and co-ordinate departments, the legislative, the executive, and the judicial. 12 St. 808, c. 117; Rev. St. U.S. §§ 1841, 1846, 1907. 'One branch of the government,' this court said in the Sinking-Fund Cases, 99 U.S. 700, 718, 'cannot encroach on the domain of another without danger. The safety of our institutions depends in no small degree on a strict observance of this salutary rule.' It is not one of the functions of a court to make up the records of the proceedings of legislative bodies. Nor can it be required, in a case not involving the private interests of parties, to determine whether particular bodies, assuming to exercise legislative functions, constitute a lawful legislative assembly. Such a question might indeed arise in a suit depending upon an enactment passed by such ana ssembly. And it might be that, in a case of that character, and under some circumstances, the court would be compelled to decide whether such an enactment was passed by a legislature having legal authority to enact laws. How far in the decision of such a question the judiciary would be concluded by the record of the proceedings of those bodies, deposited by the person whose duty it was to keep it with the officer designated by law as its custodian, are questions we have no occasion at this time to consider. It is sufficient for the disposition of the present case to say that the court below properly refused to lay its hands upon what purported to be the record of the proceedings of the legislative assembly of Idaho, in the custody of the secretary of that territory, and to cause changes or alterations to be therein made.
The cases cited by the appellants do not assert any different doctrines in respect to the power of the courts over the record of the proceedings of a co-ordinate department of government. They go no further than to assert the rule that a writ of mandamus, where there is no other adequate remedy, may be granted to compel inferior tribunals, corporations, and public officers or agents to perform purely ministerial duties, in respect to which there is no discretion to be exercised. Rev. St. Idaho, § 4977. Such cases do not sustain the proposition that the judiciary, by means of writs of mandamus operating upon the officers of legislative bodies, may supervise the making up of the records of the proceedings of those bodies, or cause alterations to be made in such records as are prepared by the officer whose duty it was to prepare them. Much less do they justify the court, in a case that does not involve the private rights of litigants, to determine whether particular bodies of persons constituted a lawful legislative assembly.
The judgment in each case is affirmed.

## Notes

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