1. The practice, pleadings, and forms and modes of proceeding of
the territorial courts, as well as their respective jurisdictions,
were intended by Congress to be left to the legislative action of
the territorial assemblies and to the regulations which might be
adopted by the courts themselves. In case of any difficulties
arising out of this state of things, Congress has it in its power
at any time to establish such regulations on this, as well as on
any other subject of legislation, as it shall deem expedient and
proper.
2. The cases of
Noonan v. Lee,
2 Black 499,
Orchard v.
Hughes, 1 Wall. 77, and
Dunphy v.
Kleinsmith, 11 Wall. 610, reconsidered and not
approved.
The Seventh Amendment to the Constitution ordains:
"In suits at
common law, where &c., the right of
trial by jury shall be preserved, and no fact tried by a jury shall
be otherwise reexamined than according to the rules of the common
law."
An early statute of the United States, the statute commonly
known as the Process Act of 1792, [
Footnote 1] an act still in force, enacts:
"That the forms of writs, executions, and other process, . . .
and the forms and modes of proceeding in
suits:"
"In those of the common law shall be the same as are now used in
the said courts, respectively, in pursuance of the act entitled 'An
act to regulate processes in the courts of the United States.'
"
Page 85 U. S. 649
"In those of equity and in those of admiralty and maritime
jurisdiction, according to the principles, rules, and usages which
belong to courts of equity and to courts of admiralty respectively,
as contradistinguished from courts of common law, except so far as
may have been provided for by the act to establish the judicial
courts of the United States, subject, however, to such alterations
and additions as the said courts respectively shall, in their
discretion, deem expedient, or to such regulations as the Supreme
Court of the United States shall think proper, from time to time,
by rule, to prescribe to any circuit or district court concerning
the same."
In this state of fundamental and of statutory law, Congress, on
the 26th of May, 1864, [
Footnote
2] passed "An act to provide a temporary government for the
Territory of Montana." It enacted:
"SECTION 6. The legislative power of the territory shall extend
to all rightful subjects of legislation consistent with the
Constitution of the United States and the provisions of this
act."
"SECTION 9. The judicial power of said territory shall be vested
in a supreme court, district courts, probate courts, and in
justices of the peace. . . . The jurisdiction of the several courts
herein provided for, both appellate and original, and that of the
probate courts, . . . shall be limited by law.
Provided .
. . that the said supreme and district courts, respectively, shall
possess chancery as well as common law jurisdiction."
"SECTION 13. The Constitution and all laws of the United States
which are not locally inapplicable shall have the same force and
effect within the said Territory of Montana as elsewhere within the
United States."
The territory being organized, its legislative assembly, in
December, 1867, passed a "Civil Practice Act" containing these
provisions:
"SECTION 1. There shall be in this territory but one form of
civil action for the enforcement or protection of private rights
and the redress or prevention of private wrongs. "
Page 85 U. S. 650
"SECTION 2. In such action, the party complaining shall be known
as the plaintiff, and the adverse party as the defendant."
"SECTION 38. The only pleadings on the part of the plaintiff
shall be the complaint, demurrer, or replication to the defendant's
answer, and the only pleadings on the part of the defendant shall
be a demurrer to the complaint, or a demurrer to the replication,
or an answer to the complaint."
"SECTION 155. An issue of fact shall be tried by a jury unless a
jury trial is waived or a reference be ordered, as provided in this
act."
In this state of things, Toombs brought an action against
Hornbuckle in a district court of the Territory of Montana for
damages caused by the diversion of a stream of water, by which his
farm was deprived of irrigation, and for an adjudication of his
right to the stream and an injunction against further diversion.
The action was framed and conducted in accordance with the practice
as established by the legislative assembly of the territory in the
provisions last-above quoted.
The case was tried by a jury, who found for the plaintiff,
assessed his damage at one dollar, and decided that he was entitled
to seventy inches of the water. Upon this verdict the court gave
judgment, and awarded an injunction as prayed.
The only errors assigned were based on the intermingling of
legal and equitable remedies in one form of action.
Page 85 U. S. 652
MR. JUSTICE BRADLEY delivered the opinion of the Court.
The only errors assigned are based on the intermingling of legal
and equitable remedies in one form of action.
Such an objection would be available in the circuit and district
courts of the United States. The Process Act of 1792 [
Footnote 3] expressly declared that in suits
in equity and in those of admiralty and maritime jurisdiction in
those courts, the forms and modes of proceeding should be according
to the principles, rules, and usages which belong to courts of
equity and to courts of admiralty respectively, as
contradistinguished from courts of common law, subject to such
alterations and additions as the said courts respectively should
deem expedient or to such regulations as the Supreme Court should
think proper to prescribe. The Supreme Court, in prescribing rules
of proceeding for those courts, has always followed the general
principle indicated by the law. Whether the territorial courts are
subject to the same regulation is the question which is now fairly
presented.
In the case of
Orchard v. Hughes, [
Footnote 4] a majority of this Court was of
opinion that the territorial courts were subject to the same
general regulations in equity cases which govern the practice in
the circuit and district courts. That was the case of a foreclosure
of a mortgage in the territorial court of Nebraska, and the court,
under a territorial law, not only decreed a foreclosure and sale of
the mortgaged premises but gave a personal decree against the
defendant for the deficiency. We had decided in
Noonan v.
Lee, [
Footnote 5] that
under the equity rules prescribed for the circuit and district
courts, such a decree could not be made. The majority of the Court
now applied the same rule in the case of
Orchard v.
Hughes, although it was decided by a territorial court.
Page 85 U. S. 653
Following out the principle involved in that decision, we
subsequently, in the case of
Dunphy v. Kleinsmith,
[
Footnote 6] reversed a
judgment of the Supreme Court of Montana on the ground that the
case (being in nature of a creditor's bill, filed to reach property
which the debtor had fraudulently conveyed) was a clear case of
equity, whilst the proceedings therein exhibited no resemblance to
equity proceedings, there being a trial by jury, a verdict for
damages, and a judgment, on the verdict.
On a careful review of the whole subject, we are not satisfied
that those decisions are founded on a correct view of the law. By
the sixth section of the organic act of the Territory of Montana,
with which that of Nebraska substantially agreed, it was
enacted
"That the legislative power of the territory shall extend to all
rightful subjects of legislation consistent with the Constitution
of the United States and the provisions of this act."
By the ninth section, it was provided "that the judicial power
of said territory shall be vested in a supreme court, district
courts, probate courts, and in justices of the peace," and that
"The jurisdiction of the several courts herein provided for,
both appellate and original, and that of the probate courts and
justices of the peace, shall be limited by law,
provided"
that "the said supreme and district courts respectively shall
possess chancery as well as common law jurisdiction."
Now here is nothing which declares, as the Process Act of 1792
did declare, that the jurisdictions of common law and chancery
shall be exercised separately and by distinct forms and modes of
proceeding. The only provision is that the courts named shall
possess both jurisdictions. If the two jurisdictions had never been
exercised in any other way than by distinct modes of proceeding,
there would be ground for supposing that Congress intended them to
be exercised in that way. But it is well known that in many states
of the Union, the two jurisdictions are commingled in one form of
action. And there is nothing in the nature
Page 85 U. S. 654
of things to prevent such a mode of proceeding. Even in the
circuit and district courts of the United States, the same court is
invested with the two jurisdictions, having a law side and an
equity side, and the enforced separation of the two remedies, legal
and equitable, in reference to the same subject matter of
controversy sometimes leads to interesting exhibitions of the power
of mere form to retard the administration of justice. In most cases
it is difficult to see any good reason why an equitable right
should not be enforced or an equitable remedy administered in the
same proceeding by which the legal rights of the parties are
adjudicated. Be this, however, as it may, a consolidation of the
two jurisdictions exists in many of the states and must be
considered as having been well known to Congress, and when the
latter body, in the organic act, simply declares that certain
territorial courts shall possess both jurisdictions, without
prescribing how they shall be exercised, the passage by the
territorial assembly of a code of practice which unites them in one
form of action cannot be deemed repugnant to such organic act.
A clause in the thirteenth section of the act, however, has been
referred to by which it is declared
"That the Constitution, and all laws of the United States which
are not locally inapplicable, shall have the same force and effect
within the said Territory of Montana as elsewhere in the United
States,"
and it is argued that by virtue of this enactment, all
regulations respecting judicial proceedings which are contained in
any of the acts of Congress are imported into the practice of the
territorial courts. But this proposition is not tenable. Laws
regulating the proceedings of the United States courts are of
specific application, and are, in truth and in fact, locally
inapplicable to the courts of a territory. There is a law
authorizing this Court to appoint a reporter. In one sense, this
law is not locally inapplicable to the supreme court of the
territory; but in a just sense, it is so. The law has a specific
application to this Court, and cannot be applied to the territorial
court without an evident misconstruction of the true meaning
Page 85 U. S. 655
and intent of Congress in the clause of the thirteenth section
above referred to. That clause has the effect, undoubtedly, of
importing into the territory the laws passed by Congress to prevent
and punish offenses against the revenue, the mail service, and
other laws of a general character and universal application, but
not those of specific application.
The acts of Congress respecting proceedings in the United States
courts are concerned with, and confined to, those courts,
considered as parts of the federal system and as invested with the
judicial power of the United States expressly conferred by the
Constitution, and to be exercised in correlation with the presence
and jurisdiction of the several state courts and governments. They
were not intended as exertions of that plenary municipal authority
which Congress has over the District of Columbia and the
territories of the United States. They do not contain a word to
indicate any such intent. The fact that they require the circuit
and district courts to follow the practice of the respective state
courts in cases at law, and that they supply no other rule in such
cases shows that they cannot apply to the territorial courts. As
before said, these acts have specific application to the courts of
the United States, which are courts of a peculiar character and
jurisdiction.
Whenever Congress has proceeded to organize a government for any
of the territories, it has merely instituted a general system of
courts therefor, and has committed to the territorial assembly full
power, subject to a few specified or implied conditions, of
supplying all details of legislation necessary to put the system
into operation, even to the defining of the jurisdiction of the
several courts. As a general thing, subject to the general scheme
of local government chalked out by the organic act and such special
provisions as are contained therein, the local legislature has been
entrusted with the enactment of the entire system of municipal law,
subject also, however, to the right of Congress to revise, alter,
and revoke at its discretion. The powers thus exercised by the
territorial legislatures are nearly as extensive
Page 85 U. S. 656
as those exercised by any state legislature, and the
jurisdiction of the territorial courts is collectively coextensive
with and correspondent to that of the state courts -- a very
different jurisdiction from that exercised by the circuit and
district courts of the United States. In fine, the territorial,
like the state courts, are invested with plenary municipal
jurisdiction.
It is true that the district courts of the territory are, by the
organic act, invested with 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, and
a portion of each term is directed to be appropriated to the trial
of causes arising under the said Constitution and laws. Whether,
when acting in this capacity, the said courts are to be governed by
any of the regulations affecting the circuit and district courts of
the United States is not now the question. A large class of cases
within the jurisdiction of the latter courts would not, under this
clause, come in the territorial courts -- namely those in which the
jurisdiction depends on the citizenship of the parties. Cases
arising under the Constitution and laws of the United States would
be composed mostly of revenue, admiralty, patent, and bankruptcy
cases, prosecutions for crimes against the United States, and
prosecutions and suits for infractions of the laws relating to
civil rights under the Fourteenth and Fifteenth Amendments. To
avoid question and controversy as to the modes of proceeding in
such cases, where not already settled by law, perhaps additional
legislation would be desirable.
From a review of the entire past legislation of Congress on the
subject under consideration, our conclusion is that the practice,
pleadings, and forms and modes of proceeding of the territorial
courts, as well as their respective jurisdictions, subject, as
before said, to a few express or implied conditions in the organic
act itself, were intended to be left to the legislative action of
the territorial assemblies, and to the regulations which might be
adopted by the courts themselves. Of course, in case of any
difficulties arising out of
Page 85 U. S. 657
this state of things, Congress has it in its power at any time
to establish such regulations on this, as well as on any other
subject of legislation, as it shall deem expedient and proper.
The judgment is
Affirmed.
[
Footnote 1]
1 Stat. at Large 276.
[
Footnote 2]
13 Stat. at Large 88.
[
Footnote 3]
1 Stat. at Large 275.
[
Footnote 4]
68 U. S. 1 Wall.
77.
[
Footnote 5]
67 U. S. 2 Black
499.
[
Footnote 6]
11 Wall. 610.
CLIFFORD, DAVIS, and STRONG, JJ.:
We dissent from the judgment in this case for the reason that
this Court has several times decided that claims at law and claims
in equity cannot be united in one action even in the territorial
courts. And we think, if a change in the rule is to be made, that
it should be made by Congress.
