Territory of Wisconsin v. Doty , 1 Pin. 396 ( 1844 )

Miller, J.

This case was tried in the district court for Walworth county, where a verdict and judgment were rendered in favor of the defendants. It is brought to this court by a writ of error, issued at the instance of the Territory. The errors assigned wEl be considered in them order.

The first assignment of error is, that the district court erred in refusing to award a venire facias to the sheriff to fill the panel of jurors to the number of thirty-six.

The whole number of the petit jury were not summoned by the sheriff, as appeared by his return. By section 35 of the act concerning grand and petit jurors, if for any cause, the whole number of any grand or petit jury should fail to be summoned, according to the provisions of the act, the judge of the court may direct the clerk to issue a venire to the sheriff, or other officer, directing him forthwith to summon a sufficient number of talesmen for such grand or petit jury. The court or judge is not obliged to issue this special venire, but is to be governed therein by the nature and extent of the business pending. The whole panel very rarely is summoned or in attendance, but the court never awards a special venire on this account unless the state or nature of the business in court should require it.

The second assignment of error is, that the court refused to permit, on the motion of the plaintiff’s counsel, the jury to be balloted for, by placing the names of all the jurors on separate pieces of paper, and drawing them by lot.

Although this would be a correct practice, and is generally pursued, yet it was not then the practice in the second district; and the statute not requiring it, we will not reverse the judgment for this cause.

The third assignment of error is, that the court allowed the jury to separate during the trial of the cause, without being under the charge of a bailiff, sworn to keep them according to law, and that the court made no order which appears of record, that said jury should not converse with the parties or their agents in relation to the suit, while thus separate ; and that it does not appear by the record that the consent of the plaintiff was obtained for such separation.

It is not necessary that such things should take place, or that they should appear on the record. It is common practice for the jury, in civil suits, to separate during the recess of the court, although it may be proper in the court to caution the jury against the approaches or intrigues of dishonest or ignorant persons, yet an omission to do so is not error.

The fourth assignment of error is,- that the court refused to receive testimony in relation to the character and kind of funds paid out by the defendants, as commissioners of public buildings.

This was abandoned by the counsel at the argument.

The fifth assignment of error is, that the court refused to require James Morrison, a witness on the part of defendants, to answer a question put on the part of the plaintiff, on the ground that his answer might tend to establish a civil liability against him and in favor of the Territory.

The record shows that this witness was called by the defendants, and that he testified that he was contractor of the public buildings, and as such contractor received from the treasurer of the commissioners of public buildings, moneys, in the months of June, July and August, 1838. The counsel of the plaintiff then asked the witness ■ ‘ ‘ how much money he had so received, and the times of its reception, which question the witness declined answering, for the reason that the answer might tend to establish a civil liability from him, to the Territory of Wisconsin in a suit that might be brought against him for a breach of his contract, and the court decided that the witness should not be required to answer the question.” By section 70 of the act concerning testimony and depositions, on page 249 of statutes, any competent witness in a cause shall not be excused from answering a question relevant to the matters in issue, on the ground, merely, that the answer to such question may establish or tend to establish that such witness owes a debt, or is otherwise subject to a civil suit. It may be that this question was not relevant to the matter 'in issue; and if it were not, the court was right in the decision made. But it does not so appear on the record. Both sides seemed to consider the testimony of the witness relevant to the matter in issue, and there is no other reason given for his refusal to answer, in the decision of the court, but the one above stated, which is not sufficient in law to excuse him. This court has not the whole evidence in the cause, from which we can judge of the relevancy or irrelevancy of this question. We must dispose of the error assigned from the bill of exceptions alone, which affords no further information upon this point than is stated above. Being then confined in our examination to the bill alone, we have to decide that the reason given by the witness for his refusal to answer the question is not, in law, sufficient to excuse him, and that the court should have required the witness to answer. We do not intend to direct by this decision that on another trial the witness shall answer this question whether relevant or not to the issue, but of that the court is to determine, if necessary.

The sixth assignment of error is, that the court admitted as evidence to the jury, various extracts from a pamphlet entitled “Journal of the Council of the First Legislative Assembly.of Wisconsin, at the Second Session thereof, begun and held at Burlington on the 6th day of November, A. D. 1837. Published for the Territory by F. J. Munger, 1838. R. P. Brooks & Co., printers, No. 1 Baker street, Cincinnati, O.,” which were offered for the purpose of showing the action of the council in relation to the proceedings of the defendants as commissioners of public buildings. The description or title page of the pamphlet is here given, and nothing more. . We have not been favored with it, or a copy of it, or of that part which was read in evidence, by which to decide whether it is legal evidence or not. Error is not to be presumed.

The seventh assignment of error is that the court sustained a motion for a new trial made on the ground that the verdict was contrary to law and evidence, on condition of the payment of all the costs by plaintiff. A motion for a new trial is usually addressed to the discretion of the court, and, unless authorized by statute, is not the subject of a writ of error. Woods v. Young, 4 Cranch, 237; Henderson v. Moore, 5 id. 11; Bar v. Gratz, 4 Wheat. 213. Under onr statute, questions of law wMch may arise upon such motion are legitimate subjects of investigation in this court. Generally a court in the exercise of its discretion, in disposing of motions for new trials, can make such order or grant the motion on such terms as may be just. But, when a verdict is set aside on the ground that it is against law and evidence, it should be done without terms. It is the duty of the jury to take the law from the court. It is the province of the jury to decide the facts, and of the court to decide the law. And if the jury should disregard the charge of the court upon the law of the case, it is the duty of the court to set aside the verdict unconditionally. And if it should appear that the court has misdirected the jury as to the law, the verdict should also be set aside by the court unconditionally. When the jury has disregarded the charge of the court, justice can only be done by setting aside the verdict and allowing a second trial, for an error of the jury cannot be reached by writ of error. When the court errs in the law of the case, the supreme court will reverse the judgment and direct that a venire facias de novo issue without terms, unless it plainly appears by the record that the plaintiff cannot recover under any circumstances. For tins reason, the court that decides a cause, when convinced of error in the law, should order a new trial unconditionally.

The eighth assignment of error is that the court entered judgment against the plaintiff. It is a general rule that a judgment cannot be rendered against a sovereignty, unless authority therefor is given by law. The United States never pay costs, nor can a court enter a direct judgment or decree against the United States for costs and expenses in a suit, to which the United States is a party, either on behalf of any suitor or any officer of the government. United States v. Barker, 2 Wheat. 395; The Antelope, 12 id. 546. The sovereignty of this section of the north-western territory is yet in the United States, and in pursuance of that clause of the Constitution giving to congress the power to dispose of, and make all needful rules and regulations respecting, the territory of the United States, the act establishing the territorial government of Wisconsin was passed. By that act a government was established or created, composed of executive, legislative and judicial branches. The governor is commander-in-chief of the militia, is to approve of laws passed by the legislature, can grant pardons, can •commission officers, and shall take care that the laws be faithfully executed. The legislative power extends to all rightful subjects of legislation. But the laws of the governor and legislative assembly shall be submitted to, and if disapproved by the congress of the States, the same shall be null and of no effect. That is, the laws passed by the legislature are valid until annulled by the disapproval of congress. The judicial power of the Territory is vested in a supreme and other courts, which possess chancery and common law jurisdiction. They are courts of record. And the district courts possess 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. Writs of error and appeals from the final decisions of the supreme court are allowed to the supreme court of the United States in cases exceeding in amount $1,000. Hence it is apparent, that by this law, a municipal corporation, or government, is created, subject to the control of and immediately connected .with the government of the United States. By virtue of its incorporation, and as a necessary means of protecting its rights in all contracts, the Territory can maintain an action in the courts within its limits. By virtue of its incorporation, all the powers and functions of a sovereignty exist — subject only to the supervision and control of the general government. The officers in all branches of the government of the Territory are entitled to similar rights and privileges, and are subject to similar pains and penalties, to those of a sovereign State. And similar provisions are made for the settlement and adjustment of claims against the Territory, and for the disbursement of territorial funds, to those in existence as a sovereign State. For all necessary purposes of government, Wisconsin is as a sovereignty, and should be entitled to the same immunities. It is a Territory of the United States, and is considered thereby a part of the United States or immediately connected therewith. For these reasons we come to the conclusion, that the Territory of Wisconsin cannot be sued in the courts of the Territory in the absence of express authority of law for that purpose. The judgment against the Territory for the costs expended by the defendants in this case must be reversed.