Show COURT PRACTICE IN tiie the territories SUPREME nie COURT OP OF tiie THE UNITED STATES 1 no y 9 october term terms 1873 james hornbuckle 1 in error to and samuel mar the supreme shall shail plaintiffs in court of the U error aror vs john j territory of toombs J montana mr nir justice bradley delivered the opinion of the court this was an action brought by toombs the defendant in error against the plaintiff s in I 1 n error in a district court of the the territory of montana for damages caused by the diversion of a stream of water wafer by which the plaintiffs plaintiff farm was wa deprived of ef 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 Territory the of which the following are the material provisions sia SK sta 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 CI SIc she 2 in such action the party compla compia complaining ining laing shall shail be known as the plaintiff and the adverse party as the defendant SEC 38 the only pleadings on oti the part of the plaintiff shall be the complaint demurrer or replication to the dependant defendant lits rits answer 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 SEC an bissu issue 0 of f fact a ct shall be tried by a jury unless a jury abury trial is waived or a reference he be ordered as provided in this act acl the case was tried by a jury who found pound for the plaintiff assessed his damages at one dollar and decided that he lie 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 are based on the intermingling of legal and equitable qu bitable 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 1 stat expressly declared that in suits in equity and 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 contra distinguished from courts of common law subject to such alterations and additions as the said courts should respectively deem expedient or to tb such sueh 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 gu lation is the question which is now fairly presented in the case of orchard vs hughes 1 I wall 77 a majority bority af pf 1 r t jr this thia court was waa of opinion that the territorial courts were subject to the tho same general regulations regulation sin ain iu equity cases govern the practice in the circuit and district courts that was the case of a foreclosure of a mor mortgage debraska We age in id the teril teni court of nebraska braska and the court under a territorial law not only decreed a foreclosure and nud sale of the mortgaged premises but gave a personal decree against the defendant for the denn deff deficiency cleney clency wo we had decided in noonan vs lee 2 black that under the equity rules prescribed for the circuit and district courts such a decree could not be made the majority of t the he court now applied the same rule in the case of orchard vs hughs hughes although it was decided by a territorial court bourt following out the principle involved in that decision we subsequently in the case of dunphy vs kleinsmith 11 wall wail lio glo reversed a judgment of the supreme court of montana on the ground that the case being in nature of a creditors bill ulli filed to reach property which the debtor had iad fraudulently conveyed was a clear case ease of ef equity whilst the proceedings ce therein exhibited no resemblance to equity proceedings there being a trial b by IV jury J 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 th the e ath section of the organic act of the territory of montana 13 stat stata 85 with which that of nebraska s substantially ly li 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 uni united ted states and the provisions of bf this act by the oth 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 I 1 I 1 and that the jurisdiction of the several courts herein brov provided ded for both appellate and original ri ginal and that of the probate burts and justices of the peace shall be limited by law provided 11 that bhatt the said supreme and di district strict strict courts respectively shall possess chancery as well as common jaaj law j jurisdiction uris diction now here is nothing which declares as the process act of 1792 did declare that the jurisdiction 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 lunis furis dictions if the two jurisdictions had never been exercised in any other way than by distinct modes of proceeding there would be ground ron fon 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 of thin things gs t to 0 prevent such a mode of prom proceeding d ing even in the circuit and district courts of the united states the same court ig fsr invested with the two jurisdictions having a law side and an equity side and the enforced separation of the two remedies legal annd aund equitable in reference to td the same subject mat ter of controversy sometimes leads to interesting exhibitions of the power of mere form td 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 pr proceeding by which the legal nights rights it of the parties dica dilated ted be this how bow however everi us as it n may lay iny a consolidation of the two jurisdictions ria ris exists in many of the states and must be considered as having been well known to congress and when the latter body in the tile 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 netlon action cannot be deemed repugnant to such organic act A clause in the section of the act however has been referred to by which it is declared that the constitution and all lassof laws of the cited states which are not locally inapplicable shall have the same force and effect within the said territory of montana as in the united states State sand and it argued that by virtue of this enactment act ment all regulations judic judie judicial a proceedings which are con talked in any of the acts of congress are imported into the practice of the territorial courts but this proposition Is h not tenable laws regulating the proceedings of the united states courts are of specific application and are in truth alid and fact locally inapplicable to the courts of a territory there is a law authorizing this court to appo appoint I 1 nt a reporter in one sense this law is not locally inapplicably to the supreme court cou cor it of the territory but in a just lust 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 bf the true meaning and intent of congress in the clause of the section above referred to that clause has the effect undoubtedly of importing into the territory the laws dawg passed by congress to prevent and punish of fences against the revenue the mail service and other othier laws jaws 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 concurred 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 red by the constitution and to be exercised in relation co with the pre presence gence cence and jurisdiction of the several state courts and governments they were not intended as a exertions of that plenary municipal authority which congress hai hab over the district of columbia Columb ift 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 suell case 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 courtr courts of a peculiar character and whenever congress has proceeded to organize a government for fon any odthe of tha territories it has merely instituted a general geneil system of courts and has committed to the territorial assembly full power r subject to a few specific cille 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 bv the organic act and suell sueh special I 1 provisions as are dontai pontal contained ned therein n the local legislature has been entrusted with the enactment of ef the entire system of municipal law subject also however to the right of congress to 1 revise alter and revoke at its discretion the powers thus exercised by the territorial legislatures are nearly as exten extensive sive as those exercised by 13 y any state legislature and the ju jurisdiction is diction of the territorial courts is collectively co exten sive with and correspondent to that of the state smote courts a very different jurisdiction from that exercised by the circuit and district courts of bf the united states in igne 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 tho 0 organic nac act invested with the same duris duril jurisdiction diet on in lri all cases arising under the constitution and laws of the united states as is vested in iii the circuit and district courts of the i united states aada portion of cf each term is directed to be appropriated to the trial of causes arising under the said constitution and jaws laws whether when acting in this capacity the said courts are to be go governed verned vernea by any of the regulations affecting the circuit and district courts of the united states is not now the question A large larga class of cases within the jurisdiction of the latter courts couris 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 tinder 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 prom prow prosecutions unions and suits for infractions of the laws relating to civil rights under the and xyth amendments to avoid question and controversy as to the modes of proceeding in such cases where not already set tied py bylaw law perhaps additional legislation would be desirable from a review of the entire endre past legislation of congress on the subject J under consideration our conclusion is that the practice pleadings and forms and modes of proceeding of the territorial courts as aa 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 bb left to the legislative action of the territorial assemblies and to the regulations which might be adopted by the courts them selves of course in case of any difficulties arising out or of this state of things congress has it in its power at any time to establish such regulations on thi this q as a well as on any other subject of legislation as it shall deem expedient and proper the judgment is affirmed chief justice walte waite did not sit la in this case aud took no part in the decision t C S 1 hornbuckle davis VS s A wo NO log vs t 4 KO lii iii toombs A 4 vs I 1 no griffith grin Grif nith lith davis and strong JJ grm we dissent from the judgments in these thesie cases for the reason that this court has several times decided that claims at law and claims in equity cannot be united in one action oven even in the territorial courts and we think if a change in the rule is to be made it should be made by congress |