Auditor v. Davies, 2 Ark. 494 (1840)

The Auditor against Anthony H. Davies, and others.

Absent, Ringo, Chief Justice.

Cdendenin & Hempstead, for the appellant:

Trapnall, Cocke & Pike, Contra:

Lacy, Judge,

delivered the opinon of the-court:

There have been several distinct propositions raised by the assign­ment of errors and discussed at the bar that we do not feel ourselves called on at this time to determine. The main question in this cause is, did the court below rightfully exercise jurisdiction in the premises!

Before we proceed to settle this point, if may be well to define the meaning of the writ of certiorari, according to the English practice, and also to state a few of the most prominent uses to which it was ap­plied. Lord Bacon defined it to be, “ an original writ issuing out of Chancery, or the King’s Bench, directed in the King’s name to the Judges or officers of the inferior courts, commanding them to return the record pending before them — to the end that the party may have more sure and speedy justice, before him or such other Justices as he shall assign to determine the cause.” One of its uses was, to bring into the court of King’s Bench the record of conviction in criminal matters before inferior courts or tribunals. Another of its uses was, where a party was sued in an inferior court to transfer his cause into one of the King’s courts for trial. In this way the writ issued, as well from the Common Pleas, as from the King’s Bench. Again, it is extensively used as a remedy in the nature of a writ of error in civil cases; and when that is the case, it generally issued from the court of Kings Bench. When an inferior tribunal proceeds in a cause contrary to the course of the Common Law, then the writ lay to correct the error, if any had accrued. If the court below exceeded its jurisdiction, the Supreme Court would quash the procedings for irregularity; but when, upon inquiry, they were found to be regular, the judgment below was affirmed. De Groenvelt vs. Dr. Burwell, et al., 1 L. Ray. 469; 1 Salk. 144; Comm. vs. Ellis, 11 Mass. R. 465; Edgar vs. Dodge, 4 Mass. 667; Van Dusen vs. Comstock, 3 Mass. 184; Cross vs. Smith, 3 Salk. 79; 2 L. Ray. 836. Another ground-­upon which the writ often issued, was, to draw to the court of King’s Bench jurisdiction over cases which by law properly belonged- to it. And it is mainly upon this latter ground that the power of the Circuit-­Court to issue the writ in question is now claimed.

It will be seen, from the definition of the writ, and from the uses to-­which it was principally applied, that it was-, generally, if not univer¿ sally, directed to judicial officers in the exercise of judicial powers- or authority. It is clear that the Auditor of Public Accounts is not a judicial officer. Nor can he exercise judicial power or authority. For the Constitution vests the whole judicial power of the State in' the Supreme Court, in Circuit Courts, in County Courts, Probate Courts, and in Justices of the Peace. (See Art. 6, Sec. 1, Con. Ark.} Whether or not the Auditor of Public Accounts, in the present in­stance, has assumed to- exercise judicial power or not, we do not deem' it necessary to inquire in this investigation. We have already had1 occasion to analyze and determine the powers and jurisdiction of the several judicial tribunals, as ordained and established- by the Constitution. The general doctrine upon that subject will be found fully explained and illustrated in the case of The State vs. Ashley, and' others, on a motion for an information in the nature of a quo- warranto, in Linton vs. Berry, and in Fisher vs. Hall and Childress, and Heil­man vs. Martin. The court in delivering the opinion in the case first referred to, says, “ in directing the organization of the judicial”' department, it was the object of the convention to- provide for the whole people of the State, through the several judicial tribunals, a free, ample, speedy, cheap and convenient administration of justice. For which purpose various tribunals, of different grades, were ordained and ordained by the Constitution, and one or more of them established in every township and county in the State; and a jurisdiction was conferred upon each by the Constitution, corresponding in- interest and magnitude with their respective grade and dignity; and in such manner, that the whole judicial power of the government became vested in some one or other of these courts.” The principle of a separate and distinct jurisdiction pervades and runs through our whole judicial system; and the Consti­tution has preserved one unbroken and harmonious chain of action through the entire plan. Each separate tribunal is left free in the exercise of its lawful and constitutional authority, and its subordinate parts are only restrained by a superior jurisdiction whenever they tran­scend the limits of the grant which created them. To assume for any one of these tribunals a jurisdiction greater or less than is con­ferred by the Constitution, is not only virtually to abrogate and de­stroy all the distinctions and divisions of separate constitutional juris­diction between the several respective courts, but it is, in effect, to ordain and establish a wholly different will or rule of action from the one laid down by the convention. The Supreme Court has appellate jurisdiction only, except in cases otherwise provided for by the Consti­tution. The Circuit Courts have original jurisdiction in all criminal cases not otherwise provided for by law; and exclusive original juris­diction of all crimes, amounting to felony, at common law; and origi­nal jurisdiction in all civil cases which are not cognizable before Jus­tices of the Peace, until otherwise directed by the General Assembly; and original jurisdiction in all matters of contract, where the sum in controversy is over one hundred dollars. The Constitution then de­clares that, “ the State shall be divided into convenient circuits, each to consist of not less than five, nor more than seven counties, contigu­ous to other; for each of which a Judge shall be elected, who, du­ring his continuance in office, shall reside, and be a conservator of the peace within the circuit for which he shall have been elected:” and, “ that the Circuit Courts shall exercise a superintending control over the County Courts, and over Justices of the Peace, in each county in their respective circuits; and shall have power to issue all the necessary writs to carry into effect their general and specific powers.” (Sec. 4 and 5 of Art. 6.) “ The Judges of the Circuit Courts may temporarily exchange circuits or hold courts for each other, under such regulations as may be prescribed by law:” and when that is the case each officer must pro tanto be considered Judge of the particular circuit, for the time being, in which and for which he is acting. Art. 5, Sec. 12, of the Cons.

The foregoing clauses of the Constitution have distributed the State into a given number of separate and independent circuits, and they have required and authorized a Judge to be elected and commissioned for each of those circuits, whose power and authority are restricted and limited to the prescribed and ascertained boundaries of his particular district. And the Constitution has, furthermore, established a Circuit Court in each county of the State, and it has fixed and confined its territoritorial jurisdiction within the boundaries thereof; and to the circumferen ce and extent of those limits each Circuit Court has a super­intending power and control over County Courts and Justices of the Peace; and is clothed with ample authority to issue all the necessary writs to carry into effect its general and specified powers. But no writ or process, according to the principles of the common law, can run or be executed beyond the limits of the territorial jurisdiction_of the court out of which it issues. It is, then, clearly manifest, as there is a circuit court established for each county in the State, that the court of one county cannot run its writs or process within the bounda­ries or limits of another county, without some legislative provision upon the subject. What class of cases, and for what purposes, the legis­lature may authorize the Circuit Court of one county to run its writs of process, and have the same executed within the boundaries or lim­its of another, or of different counties, is a question of some nicety, and we do not take upon ourselves now to determine, as that point is not expressly or legitimately before us. In the present instance, as there is no legislative enactment authorizing the Circuit Court of Chi-­cot county, or the Judge thereof in vacation, to issue the writ in this case to the Auditor of Public Accounts, and as the writ has been run into and executed upon him in the county of Pulaski, we are clearly of the opinion that it has been illegally and improvidently issued; and therefore null and void. Having disposed of this branch of the case, we will next inquire how and in what manner the State can be sued. The Constitution declares “ that the Legislature shall, by a vote of both Houses, elect an Auditor of Public Accounts:” and requires him to “ keep his office at the seat of government, and to perform such duties as may be imposed on him by law.” Art. 5, Sec. 21, of the Cons. It also gives to the General Assembly “ the power to prescribe bylaw in what court, and in what manner, suit shall be commenced and prosecuted against the State.” Art. 5, Sec. 22.

In obedience to this injunction, the Legislature have declared that *{ all actions against the St-ate shall be brought in the Circuit Court of the county in which the seat of government is situated, and be against the State by name.” “ The process, in all actions against the State, shall be a summons, and shall be executed by the officer to whom it may be directed by delivering a copy thereof to the Auditor of Pub­lic Accounts.” Rev. Stat., C. 416, S. I and 2.

The statute gives to the party injured authority to sue the State by name, and it makes it the duty of the Auditor to appear and defend the.action whenever process is served upon him; and it expressly de­clares that, when a suit is instituted against the State, “ it shall be brought in the Circuit Court of the county in which the seat of go­vernment is situate.” A sovereign state or government is incapable of being'sued without some legislative provision authorizing such a proceeding; and the statute must be strictly followed.

This court is bound, judicially, to know that the Auditor of Public Accounts keeps his office at the seat of government in the city of Lit­tle Rock; consequently, he is beyond the reach of the jurisdiction of any suit brought in the Chicot Circuit' Court, or the order of the Judge of that circuit. The present proceeding can be considered in no other light than a suit, to all intents and purposes, institu­ted against the State. The proceedings possess all the constit­uent parts of a suit; the actus reus et judex; and it is certainly a suit against the State, for the appellees do not seek to make the Auditor personally responsible, but merely to release themselves from a liabil­ity as securities on the official bond of the sheriff, which the State holds against them. We have already shown such a suit can only be brought and prosecuted in the Circuit Court of the county in which the seat of government is situated, or in some other court having cognizance in such case over the subject matter in dispute, and whose jurisdiction is .co-extensive with the limits of the State. If this position be true, and it seems to us not to admit of a doubt, then it necessarily follows, be­cause Chicot Circuit Court is not the county in which the seat of go­vernment is situated, the Judge thereof had no lawful power or au­thority to award the writ of certiorari directed to the Auditor of Pub­lic Accounts, and thereby take cognizance of the cause and proceed to adjudicate the matter. This being the case, of course all his acts, and those of the Chicot Circuit Court, were wholly extra-judicial. The judgment of the court below must therefore be reversed, with costs; and the cause remanded, to be proceeded in agreeably to this opinion here delivered, which is, that the writ of certiorari and supersedeas be dismissed, with costs, by said court for want of juris­diction to award the same.