State v. Green

The Court held the case up until the afternoon session, and then delivered the following decision:

Eorp, C. J:—

After conference, a majority of the.Court

think that the rule should be discharged.

There is but one reported case directly upon the point raised in this case in this State. That is the case of Knight & Kennedy vs. Ferris, 6 Hous., 283. Messrs. Bradford & Higgins, who represented the defendants in error, presented this point: That the court below sitting in Sussex County had jurisdiction to issue the writ of mandamus against a public officer in New Castle County and that it was so held in the court below, 6 Hous., 146.

Chancellor Saulsbury, who in his opinion directly considered this point—no other opinion appearing in conflict with it—on page 314 of Sixth Houston, as appears by the report of the case, uses this language:

‘ ‘ In considering this case, I shall confine myself to two questions : First, had the Superior Court of this State, sitting in Sussex County, jurisdiction to award a writ of mandamus in this case. ’ ’ Thus the point was directly raised and passed upon by the Chancellor.

Then on page 328 of the same report he uses this language : “ There were many causes of error assigned to the record and proceedings below. I have considered only two, and express no opinion with respect to the others.” One of those points was whether or not this was a local action ; and the Chancellor there distinctly took the position that it was a local action, and on page 318 uses this emphatic language : “No one ever supposed, that a purely local action, or one arising in a particular county of the State, and which could not have arisen elsewhere, could be heard and determined by the court in another county although the process of the court, necessary and proper to be issued in the case might, in the language of the constitution, be issued out of the court in the county in which the suit or controversy was pending in either county into every county.”

Judges Comegys and Wootten sat with the Chancellor. Judge Wootten delivered an opinion, but it does not antagonize in any way the opinion of the Chancellor ; it certainly is not inconsistent with the position taken by the Chancellor. Judge Comegys seems to have expressed no opinion. Therefore upon the face of the report, this seems to have been the opinion of the Court of Errors and Appeals.

This is the decision of the court of highest jurisdiction in this State. It may be true, as Judge Grubb has stated, that in Sussex County this question came up afterwards before the Superior Court, and that there Chief Justice Comegys—one of the Judges who sat above—expressed a different view, and the court were unanimously with him. That case, however, is not reported. In any event there seems to be conflict, and where conflict exists, one case being reported and the other not', one case being in the Court of Errors and Appeals of the State, and the other in a subordinate court, a majority of this court think we ought to follow the ruling of the Court of Errors and Appeals until it shall be overruled by competent authority. Expressing no opinion whatever as to whether the action is local or not, yet as the court of highest jurisdiction has expressed an opinion that it is a local action, we think that opinion should prevail until it is otherwise determined.

In the case of Hastings vs. Henry, 2 Hardesty, 39, (1 Marvel, 287), cited by the Attorney-General, this precise question was not passed upon in the opinion. That w7as a case where the action was brought in Sussex County against a registration officer of Sussex County, and as a matter of course the question was not properly before us, and any opinion thereon necessarily would have been obiter dictum.