Daily globe. [volume] (St. Paul, Minn.) 1878-1884, 1881-05-21
THE SUPREME COURT.
Justices Gilfllan and Berry Yester-
day.

Justices Gilallan and Berry Yester-
day.
Supreme Court.
The State of Minnesota ex rel. William d.
Golfer, relator, VS.. Walter F. Burr, respond
emf.
Opinion-This is an application by
order issued March Is, 1881, requiring
respondent to show cause why q
peremptory writ of mandamus shall
not issue commanding him to perform certain
acts as judge of the municipal court OF the
city of st. Paul. We are met at the outset
with the question, is not the jurisdiction OF
this court in cases of mandamus, except where
it is to issue to district court or judge there
Of, taken away by the act of March Z, 1881.
To determine this question We need not go
back in the history of legi-latiOn on the sub
ject beyond the general statutes OF 1866, ex-
cept to say that prior to that time while the
court had Jurisdiction to issue peremptOry
writs of mandamus, it could not, because OF
the right of trial by jury given in such ceses
and of the constitutional inhibition OF that
mode OF trial in this court, proceed by alterna-
tive writ. Harkins vs. Supervisors, MINI. ,S42.
The court did in such cases, however, contin-
ne to proceed by order to show cause why q
VS.. Lambert, 10 Mimi, 1853.
But the general statues of 1866, sectiou IL,
chapter 80, made the original jurisdiction OF
the district courts in all cases of mandamus
exclusive except when the writ was to be di-
rected to the district court, or judge thereof
in his official capacity.
The act of March 5th, 1859, general laws p.
95) gave this court original concurrent 5u-
rsdiction with the district courts in all cases
IF nd af section
ter so, general statutes 1878.
Section l, chapter 63, general statutes 1866,
gave in terms this court power to issue wrlts
of error, certiorari mandamus, ETC., to all
courts Of inferior jurisdiction, to corporations
and individuals. This power, so far as related
to mandamus, was of course limited by the
provisions of section IL, chapter 80, to writs
to be directed to district court, or judge
thereof; Notwithstanding the general language
of section l, chapter 63, the court had no ju
risdiction except that mentioned in section Ii,
chapter 50, until the act of 1869 conferred on
the court the original jurisdiction In
all cases. After 1869 the jurls-
diction of this court in all cases except
where the writ was to be directed to district
court or judge thereof, rested on the act OF
that year land not on Sec l, Oh. 6S.
In 1876, Gen. Laws, oh. 81, Sec /, CHI. 6, was
ammended by inserting in it the words quo.
court might issue, and adding provisions that
the court shall be always open for the issil-
ance, return and hearing of the writs mention.
ed and regulations as to the Issuance and re-
turn thereof, except in respect to quo war
rantO the Jurisdiction of the court was not
affected, and was not intended to be affected by
the amendment.
1t was not intended thereby to create or rest
in this court original jurisdiction of cases OF
f.>r fsnn ri oil
such Jurisdiction to the full extent, under and
by virtue OF sec. Ii, CHI. so. The eyeident pur-
pose of the act was to give the court jurisdic-
ton of quo warranto and to regulate to some
extent the proceedings in that and other writs
of which the court had jurisdiction. The act
Of March 7tb, 1881, is in terms and amend
ment ofsec. Is, Oh. 80, so as to read as follows:
The section as SO amended is not only IN
language but in substance wholly and through
out different from the original section. Not
single provision of the old section is re-
tanned. The amendment was in effect an en-
tire repeal of the original section, and the en-
actment of new provisions in the place OF
those repealed. This repeal of the act upon
which the original Jurisdiction of this court
had rested would probably be sufficient, not
withstandlng the act of 1876, to take away the
jurisdiction except as given by section IL,
chapter so.
DuC Une amenuueuG ltetlI luIHieHcS cNiucuCe
aside from lis repeal of section 13, of an intent
to deprive this court of jurisdiction in future
cases and of the understanding of the leglsla-
ture, that it has that effect, for after giving
the right of trial by jury, at the request OF
either party upon issues of fact in cases Of man.
damus in the supreme court and district courts
then the proviso provided always that except,
as aforesaid, nothing in this act contained
shall be construed SO as to
juisdiction to hear and finally determine
now pending in said court.
This saving clause was entirely
unnecessary, except on the the
ory that without it the Jurisdiction
even of pending cases, would be lost. Also,
the amendment contains provisions for this
court in pending cases, transmitting the
record to the district court, if there is an
issue of fact and demand for jury trial,
but there is no such provision except as to
hearing cases; cases in which as we have seen
the jurisdiction of this court is expressly
saved by the proviso.
When the legislature gave the right OF tr al
by jury in all cases, if requested. mode of
trial which cannot be had IN this court, why
did it contne the provision for securing that
mode of trial, in cases this court, to those al
ready pending? Why was there no provision
for future cases in this court? The answer is
obvious: There were to be no future
cases in this court under section ID,
and there was consequently no necessity for
such provision. We therefore hold that the
act of 1881 takes away the original jurisdic-
ton of this court in cases of mandamus, ex-
cept IN those pending at it's passage and those
mentioned in section 10.
Order to show cause discharged.
GILFILLAN, G. j.
The board OF county commissioners Of the
county of Redwood, respondents,vs. Amasa