Page:The Green Bag (1889–1914), Volume 17.pdf/177

 THE GREEN BAG certifying any returns or issuing any cer tificates of election until ordered to do so by the court; it prescribed the form which its certificates should take and finally it commanded the commission to exclude from the abstract of the votes the returns from ten precincts, on the ground that it appeared from the evidence adduced before the court in the trial of persons charged with con tempt that the returns from those precincts were so tainted with fraud that it was im possible therefrom to determine the number of legal votes actually cast for any person.1 Let us now consider the source of the jurisdiction of the court to issue this extra ordinary writ under the circumstances de scribed. The authority of the court is found if at all in Article VI., sec. 3 of the state constitution as follows: "It (the supreme court) shall have power to issue writs of habeas corpus, mandamus, quo -warranto, certiorari, injunction, and other original and remedial writs, with authority to hear and determine the same." The incongruity of the association of the writ of injunction with the other writs named in this section; the mingling without distinction of common law and equity processes, of prerogative writs and an ordinary judicial writ in the same clause, and the impossible charac terization of the writ of injunction as an "original and remedial writ" early received attention. It would be an interesting study to trace the origin and history of this section and similar clauses in the constitutions of other states. The section is not first found in the constitution of Colorado. A sub stantially identical provision is embodied in the constitution of Wisconsin and has 1 A direct effect of the exclusion of these ten precincts was to change the balance of power in the state senate from the democratic to the repub lican party, and thereby insure the confirmation of the nominations of two republican supreme court judges, to gain -whose confirmation there was much party solicitude. It had a significant influence also in determining the relative political strength of the two leading candidates now en gaged in a contest for the office of governor before the joint assembly.

been construed in a number of decisions by the supreme court of that state. The first case, however, in which the jurisdiction of the court to issue the writ of injunction upon original application was fully considered in that of Attorney-General v. Railroad Com panies.1 In a very able opinion Chief Justice Ryan there points out the peculiar association of writs of a different nature and the difficulties of construction, and enters into an exhaustive treatment of the nature and limits of the original jurisdiction con ferred. The conclusion is reached that the constitution puts the writ of injunction to prerogative uses, and uses kindred to the uses of the other writs associated with it, and it thereby becomes a quasi prerogative writ. Those prerogative uses are such as apper tain to and are peculiarly appropriate to the state as a sovereign power. Chief Justice Ryan thus explains the original jurisdiction of the court: "It is therefore plain that the original jurisdiction of this court is both legal and equitable, within certain limits; legal for the use of the common law writs; equitable for the use of the chancery writ. The use of the former must be according to the course of the common law courts. The use of the latter must be according to the course of courts of equity; in each case, subject to statutory modifications of the prac tice, which do not impair the jurisdiction granted. Here are three jurisdictions but one policy; to make this court indeed a supreme judicial tribunal over the whole state; a court of last resort in all judicial questions under the constitution and laws of the state; a court of first resort in all judicial questions affecting the sovereignty of the state, its franchises or prerogatives, or the liberties of its people. Here are several writs of defined and certain 1 35 Wise. 425 (1874)-