Tyler v. Houghton

By the Court, Sanderson, C. J. This is an application for a mandamus to compel the [28]respondent, as Surveyor-General and Register of the State Land Office, to allow the petitioner to contest before him the application of one Granger. for the purchase of certain lands in lieu, of the sixteenth and thirty-sixth sections, under the Act of the 27th of April, 1863.

The first question presented for our determination is as to the jurisdiction of this Court in this class of cases. Under the new Constitution, it is claimed this Court has original jurisdiction in cases of mandamus, certiorari, and prohibition. Upon this point the language of the old Constitution was as follows: “And the said Court, and each of the Justices thereof, shall have power to issue writs of habeas corpus at the instance of any person held in actual custody. They shall also have power to issue all other writs and process necessary to the exercise of their appellate jurisdiction.” The new Constitution reads as follows : “ The Court shall also have power to issue writs of mandamus, certiorari, prohibition, and habeas corpus, and also all writs necessary or proper to the complete exercise of its appellate jurisdiction.” It is clear that under the old Constitution this Court had no original jurisdiction except in cases of habeas corpus. The only change made by the new Constitution is the addition of the writs of mandamus, certiorari, and prohibition. These writs could be issued in aid of the appellate jurisdiction of the Court previous to the amendments to the Constitution under the general power conferred to issue all writs and process necessary to the exercise of its appellate jurisdiction. Therefore, there .could have been no occasion to enumerate these writs for the purpose of enlarging the appellate powers of the Court. Thus the change, in the language of the Constitution, is made purposeless, unless we hold that the intention was-to add to the original jurisdiction of the Court. And we think, although it might have been more clearly expressed, that such intention is apparent from the language used. The clause in question must be read as giving express power to issue the writs of mandamus, certiorari, prohibition, and habeas corpus, and in addition thereto, all writs necessary orproper to the complete exercise of its appel[29]late jurisdiction. By this reading only can any design be accorded to the change which has been made.