Nickels v. Griffin

Opinion by

Greene, Associate Justice.

The libellant below, appellee here, moves to exclude M., a' Counsellor of this Court and Proctor of record in this cause from appearing as proctor or advocate for the appellant in this Court, for the reason that Mr. M. has so far been attorney and of counsel for appellee, heretofore, as to have professionally become possessed of facts material to appellee’s rights in the cause before this Court. That such confidence has obtained between him and appellee appears to us sufficiently evident from the affidavits filed in support of this motion, and the pleadings certified to us in this transcript.

Counsel claims that he was retained by appellee specially, for a particular purpose; that he performed his professional duty for the accomplishment of that purpose; that he was thenceforth at liberty to accept a retainer in this cause adverse to his former client; that not until he was so at liberty did he act as proctor or advocate for appellant; and that throughout the conduct of this cause in the Court below, he has been suffered to so act, without objection.

But we are all of one mind, that the right of the appellee to make this objection has not lapsed by reason of failure to make it sooner; that professional confidence once reposed can never be divested by expiration of professional employment; and that it is an abuse of trust not be tolerated, for counsel to take the'position that Mr. M. has taken in this cause.

Let a rule be entered, excluding Mr. M. from further appearing in this cause.

Motion to strike deposition from files.

Opinion by

Jacobs, Chief Justice.

Motion to strike from the files of this Court the depositions taken by the plaintiff in error, since the trial in the District Court.

Counsel have argued and submitted for decision upon this motion, the question, whether new evidence can be heard in admiralty causes in the Supreme Court of this Territory. Probably the better practice would have been to have asked this Court for leave to file and use such depositions and not at least to have filed them until leave had been asked for and obtained. But as the learned counsel have argued the whole question ably and fully upon this motion, and there is no necessity in our judgment for 'further argument we have concluded that it would be best to give our opinion on the main question involved. This leads to a consideration of the different provisions of the Organic Act of the Territory pertaining to the appellate jurisdiction of this Court. Hence:

The provisions in the Organic Act relating to the jurisdiction of the Courts of this Territory will be stated with an exposition of their meaning.

1. “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 as limited by law;” with a proviso as to Justices of the Peace, and a proviso that the Supreme and District Courts shall possess chancery as well as common law jurisdiction.

Now what is meant here by appellate jurisdiction such “as shall be limited by law?”

1. "We hold that the limitation here spoken of means a limitation by the constitution, or the Organic Act itself — or some law of Congress passed subsequent to the date of the Organic Act, or by the Legislature of the Territory, acting under and by virtue of the Organic Act. The proviso shows- that this limitation had special reference to the action of the Territorial Legislature. Over all rightful subjects of legislation the Territorial Legislature may limit by law the jurisdiction of the Territorial Courts, both appellate and original, but they cannot take away or abridge the chancery or common law jurisdiction of said Courts. This is said, of course, with reference to the above quoted limitations with reference to Probate and Justice of the Peace Courts.

It is not necessary for us to inquire whether there are any limitations in the constitution operating on the appellate jurisdiction of these Courts. Are there then any laws of Congress passed subsequent to the date of the Organic Act, or any provisions in the Act itself, or any laws mentioned in the Act itself that define and limit or regulate the appellate jurisdiction of this Court ? None have been cited by the learned counsel who have argued this motion, and we presume that none exist. It must be remembered that the language is “as limited by law.” Now a rule is not a law, because it is not prescribed by the supreme power, and jurisdiction neither appellate nor original can be created by rule.

Then has the Territorial Legislature -limited and defined and regulated the appellate jurisdiction of this Court?. All concede that it has so far at least as that appellate jurisdiction has been regulated at all. Then as the appellate jurisdiction of this Court is only such as is limited by law, and as the Territorial law is the only regulating law, I come to the conclusion from this clause alone that appeals in admiralty must come here in accordance with the Territorial law. See 1 Oregon Reports, 101.

But again, the Organic Act provides (9 Sec.) that: “Writs of error, bills of exception and appeals, shall be allowed in ail cases from the final decisions of said District Courts to the Supreme Court under such regulations as may be prescribed by law, but in no case removed to the Supreme Court shall trial by jury be allowed in said Court.”

The term “prescribed” has a well settled legal meaning. It is evident that before an appeal can be taken from a final judgment or decision or decree of the District Court, some provisions must be made by law under and by virture of which the appeal must be taken. They must be written out, enacted, passed, before the appeal could be taken. It must be by law. The enactments of the Legislature to be prescribed are called regulations, because the right of appeal having been distinctly given, the necessary steps to be taken to perfect that appeal belongs to the practice or procedure of the Court, and these regulations are but statutory rules upon the subject.. A strict construction of these words would require that these regulations should assume the form of legislative enactments.

Suppose for the salce of the argument that the right of ap - peal having been plainly given, that this Court by virtue of its inherent powers can make rules to govern appeals from the District Courts to this Court. It has made no special rules for the bringing up of appeals in admiralty causes from the final decisions of the District Court to this Court. Let us suppose that the Supreme Court of the United States has power to make such rules — has it made any ? The Supreme Court of the United States has decided that these Courts are, not United States Courts; that they are not and cannot be the depositories of the Federal Judiciary power, but that they are Territorial Courts upon which Congress has seen fit to confer jurisdiction over certain causes which in the States are cognizable in the Federal tribunals. U. S. Con. S. C. R., 7 Vol., 685; American Insurance Co., et al., vs. Canter; Clinton, et al., vs. Englebrecht, 13 Wallace, 434.

There are no rules adopted by the Supreme Court of the United States regulating appeals in admiralty from the Territorial District Court to the Supreme Court of the Territory. Buie 45' of the S. C. regulates the time when the appeal shall be taken, and Buie 53 what the clerk shall send up, but both of these rules are applicable in express terms to taking causes from the District to the Circuit Court of the United States. Now an appeal could not be taken by these rules alone, and it is notorious that the appeals in admiralty causes are actually. perfected under the rules and regulations of the District Courts. This appeal came up here under the rules of the District Court ■of the Southern District of New York, adopted by the Territorial District Court of the Third Judicial District. The District Court of the Third Judicial District has no right to impose rules on this Court, much less has the District Court of the Southern District of New York. The rules of the last named Court are full, clear, and admirable, but they have no operative force in this Court without its adoption to say the least. Again we reach the conclusion that appeals in admiralty must be brought here under regulations prescribed by the Territorial Legislature, for that is the only body which has prescribed by law such regulations. It is true that these regulalations are not as full and as complete as we could wish them to be, but we can argue nothing from this defect or want of fullness. The Territorial Legislature possess this power, and they have exercised it; the imperfect manner of its execution may be an argument for its further exercise, but none as to the power itself.

But again, the Organic Act provides that, “Each of the said District Courts shall have and exercise the same jurisdiction in all cases arising under the constitution of the United States and the laws of said Territory as is vested in the Circuit and District Courts of the United States; writs of error and appeals in all such cases shall be made to the Supreme Court of said Territory the same as in other cases.”

The laws of the Territorial Legislature can confer no jurisdiction on the Circuit and District courts of the United States properly so considered. To give this clause such a limited construction is to make it an absurdity. What then is meant in this clause by the laws of said Territory? Does it not mean the laws which had an operative force in this Territory at the time of the passage of the Organic Act? In answer to this question let us inquire what laws were in force in this Territory at the time of the passage of said Act. The Organic Act as all know was passed March 2d, 1853. 10 Stat. U. S., 172.

1. The revenue laws of the United States were in force over this Territory by virtue of it having been a portion of Oregon Territory. Organic Act of Oregon, Sec., 16, 9 Stat. 823, U. S.

2. All the laws of the United States so far as the sainé or any provision thereof may be applicable. Organic Act of Oregon, Sec. 26.

3. The admiralty law of the United States which was then and had been since A. D., 1848, administered in the Territorial courts of Oregon Territory. The cases in 1 Oregon Reports conclusively show that what is known as admiralty law was not only in force, operative in this Territory, but was administered by the Oregon courts as a part of the. jurisprudence of the country.

By laws, is meant as used here, not only an operative and subsisting system or code, but I think the idea of continuance is involved also. Hence it does not mean those local laws which must perish by the passage of the Organic Act, unless saved by some clause therein, such as the laws of Oregon which were in force at the time of the passage of said Act, and which were continued by it until the Territorial Legislature- could meet and act upon them. Organic Act of Washington, Sec. 15.

4. The Federal Legislation with reference to Oregon passed between Sept. 1, A. D., 1848 and March 2, 1853, the date of that Organic Act. Organic Act of Washington, Sec. 15, 10 Stat., 172.

The system of laws which I have enumerated, did give subjects of jurisdiction of the Circuit and District courts of the United States, and this construction makes the clause reasonable and harmonious, and this view must have been taken by Chief Justice Williams in the Oregon case cited above. This construction entirely removes the seeming absurdity that the Territorial' Legislature can confer jurisdiction upon the Circuit and District Court of the United States.

Such being in our judgment the true sense of the phrase “laws of said Territory,” let us consider the latter clause of the above quoted sentence: “Writs of error and appeals in all such cases, shall be made to the Supreme Court of said Territory the same as in other cases.” Such cases must mean cases arising under the constitution, the Revenue laws, such laws of the United States as are applicable to our condition, including the laws passed by Congress with reference to the Territory of Oregon from September A. D., 1848, to the date ©f the (.passage of our Organic Aet, and the admiralty laws of the United "States as administered by the Territorial courts of Oregon. The criminal laws of the United States as administered in the Territorial courts, are included in the laws applicable to our condition. Cases arising under all of the above enumerated laws are of Federal cognizance in the States and jurisdiction the same as that vested in the Circuit and District courts of the United States is given to the District courts of this Territory, and an appellate jurisdiction given to the Supreme Court. Appeals in such cases must be made in the same manner as in other cases, or the same as other cases. What other cases? The answer is, cases in which appeals are provided for by regulations prescribed by Territorial law. The term “regulations” means legislative rules. The power to make these rules is given to the legislature by the Organic Act. Admit that the legislature can delegate the power to make rules to the courts, the legislature has made some rules, the courts others. These rules, no matter by whom made, are the regulations prescribed, and appeals can only be made to this Court in conforming with them.

From these provisions, I infer that new evidence cannot be admitted in this Court in admiralty cases, no more than it can in equity cases. In this I am supported by the Supreme Court of the late Territory of Oregon. 1 Oregon, 101.

The Supreme Court at that time consisted of Williams, Olney and Deady. And the counsel employed in that case were able admiralty lawyers.

One more consideration and I dismiss this point in the motion: If the rules of the United States Supreme Court are binding upon this Court at all, I cannot see why they should not be just as operative in common law cases, and cases in equity as in admiralty causes. If this be so, then all the legislation of this Territory, and all other Territories, has been wrong. It has been sanctioned and sanctified by long use and the non-disapproval of Congress. See reasoning of Chief Justice Chase in the Utah case quoted above.

A remark made by the late Chief Justice of this Court in the opinion written by him in the case of the sloop Leonede vs. United States, decided at the December term, A. D., 1861, has been quoted and relied upon by the learned counsel for plaintiff in error.

Chief Justice Hewitt in delivering the opinion of the Court in the case alluded to says:

“It will be remembered that the Supreme Court of the Territory, stands, so far as admiralty is concerned, in the place of a United States Circuit Court.” 1 Washington Territory Reports, page 178.

Nothing is more manifest than that an appeal can be taken from the District Court of the Territory to the Supreme Court of the same as fully and as clearly as one can be taken from the District Courts of the United States to the Circuit Court of the United States. In that sense the remark is strictly true The proposition was too elementary for an independent proposition and solemn adjudication, and hence it occurs as a parenthetical clause in a long sentence. The remarks of courts and Judges must always be understood to be made with reference to the question raised, or the facts before them.

It was not a question in that case whether new evidence could be heard in admiralty causes in the Supreme Court of the Territory. We cannot do the learned Chief Justice, who delivered the opinion in that case, the injustice to believe that he ever intended to express an opinion on so important and difficult a question when it had not been argued by learned counsel, and when it was not before him tor decision.

As to the testimony of Mr. Hilton, or that portion of it contained in the record, I can only say that I regret that the record does not show the reason of the exclusion. I had supposed that the clerk who wrote down the testimony by the consent of the parties, had made a minute of the circumstances attending its exclusion. I do not feel myself at liberty to state those reasons. Causes here must be heard upon the record alone. Hut as testimony may be withdrawn by counsel and thus go out of the case legally, or be excluded by order of the presiding judge under certain circumstance legally, and if nothing more than the exclusion appears, the presumption is that it was done legally and properly.

The view entertained by me on the main proposition renders it unnecessary to pass upon the special reasons argued in the motion to strike from the files the deposition of Mr. Dow-ling. That was taken since the trial in the Court below.