The daily Gate City. [volume] (Keokuk, Iowa) 1855-1916, 1914-07-16

doubt always concede that the con
stitution bound the legislature as vel
: as the subjects, it was for lon.
time contended that it lay with tn,
legislature to say whether Its act:
were constitutional or not. Marbur.
Nv. Madison settled that contention
| against the legislature. 1t would have
1 knocked out the constitution, so fal
as the legislature Is concerned, hae
it been settled otherwise.
i That the constitution binds the
judiciary, as well as the legislature
and the subjects, is a proposition that
likewise, has never been disputed. But
here the analogy ceases! The judi
ciary has the power tnat the legisla
/ ture contended for. It determines fol-
itself, and all the rest Of us, whether
its acts are or are not within the
constitution. And there is no remedy
/ for q petition for rehearing, with
but twenty minutes to present 1t, is
no remedy.
The consequence of this state OF al
fairs is that the judiciary violates the
constitution at its pleasure 1t fire.
quently violates it by going beyond
the limits of its power fixed thereby.
| Section of article of the constl-
tuition, as to the supreme court, pre-
scribes:
"The supreme court shall have ap-
peIiate jurisdiction only in cases IN
chancery, and shall constitute court
for the correction of errors at law,
under such restrictions as the gen
eral assembly may by law prescribe"
| To restrict is to confine within
bounds, SO that the power Of the court
| in the correction of errors at law Is
not absolute under the constitution,
but is also subject to limitations pre-
scribed by the legislature.
| The legislature in section 4139 OF
the code has prescribed that "the
(supreme) court may reverse. modify
Or affirm the judgment, decree or or
der appealed from, or render such as
the inferior court should have DONE.
Bearing in mind the distinction be-
| tween cases in chancery and actions
at law made by the constitution, 1t
cannot be said the general assembly
by said section enlarged, or undertook
to enlarge, the constitutional power
of the court.
Now actions at law are triable by
| jury and the constitution provides
| (section of article u that .'the right
of trial by jury shall remain invio-
late'
| When a law case has been tried by
jury in fact the power of the su-
preme court under the constitution
and section 4139 is clearly limited to
reversing or affirming the judgment
upon the verdict, unless there is In
the case special verdict upon which
the lower court should have rendered.
a Judgment which 1t did not render.
Then the supreme court has power to
reverse the judgment upon the (gen-
eraD verdict and also to render upon
the special verdict the judgment the
lower court should have rendered.
In the latter event the supreme
court has the precise power that is
conferred upon the lower court by
sections 1926 to section 1928 OF the
code.
When a law case is tried to the
court, the court, as to the facts, acts
as jury.
Code section 37S3
1t NAV make separate, or special,
finding of facts, in which event Its
finding shall have the effect OF
special verdict.
Code section 1854.
In the event that 1t does not do SO,
then it's general finding has no other
effect than the general verdict OF
Jury. This doctrine was recognized
early by the supreme court.
Woods v. Gevecke, % Iowa, 561.
Mellenger v. Parsons, 81 Iowa, So.
The latter case might have been
tried de novo in the supreme court,
but as it was not SO tried the court
deemed itself bound by the rules in
law cases upon appeal.
See also
Brown v. Curtis, III Iowa, 542, DO
Row ". McCaughan, 113 Iowa, 275.
PIT.
You wrote the opinions in the lat
ter two cases.
Now bearing in mind that the legls-
lature has under the constitution no
power to enlarge the powers OF tins
supreme court as court for the cor
rection of errors at law In law cases,
for to restrict Is not to enlarge, what
is the limit of the power OF the SUI
preme court in actions at law that
have been tried to the court, jury
de lure, in the lower court?
The method of trial in the lower
court certainly cannot enlarge tne
constitutional power Of the supreme
court.
II the court below, acting as jury,
has made separate, Or special, nnG'
ing of facts. having the effect OF
special verdict. and has entered an
erroneous Judgment thereupon, It's