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JURISDICTION.1

1. Definition, 244.

2. Various Kinds of Jurisdiction, with Definitions Thereof, 251.

3. Constitutional Limitations as to
Jurisdiction, 252.

(a) Furisdiction of the Judicial
Over the Executive Depart-
ment, 253.

(b) Jurisdiction of the Judicial
Over the Legislative De-
partment,and Over Political
Questions, 257.

(c) Furisdiction of the Legislative Over the Executive and Judicial Departments, 258. 4. Superior or Inferior Courts Courts of General and Limited Jurisdiction, 265.

(a) Superior Courts, 267.
(b) Inferior Courts, 268.
(c) Fustices' Courts, 270.

or

5. Presumption as to Jurisdiction, 270.
(a) Of Superior Courts, 271.
(b) Of Inferior Courts, 274.
(c) Of Superior Courts Exer-
cising Special Statutory
Powers, 275-

6. Jurisdiction Determined by Value,
283.

(a) Courts of Original Furis

diction, 283.

(b) Courts of Appellate Furis-
diction, 287.

7. Exclusive Jurisdiction, 290.
8. Concurrent Jurisdiction, 292.
(a) Generally, 292

(b) Law and Equity Courts, 293
(c) Jurisdiction in Rem, 295.

(d) United States and State Courts, 295.

(e) States with Boundary Rivers, 296.

9. Incidental Jurisdiction; Terms of Court; see also Contempt of Court. Courts, 296.

10. Jurisdiction Acquired by Consent, 299.

11.

(a) Over Persons, 299.

(b) Over Subject Matter, 301.
(c) Only Given to Judicial Tri-
bunals, 303.

Jurisdiction Taken Away, 303.
(a) Generally, 303.

(b) By Statute, 303.

(c) By Consent, 305.

(d) By Subsequent Events, 305.
12. Jurisdiction Enquired Into, 306.
(a) When, 306.

(b) By What Court, 307.
(c) In What Manner, 309.

(1) Motion to Dismiss, 309.
(2) Demurrer, 309.

(3) Plea, 309.

(4) Motion to Vacate Judg ment, 310.

(5) Certiorari. See Certiorari, 310.

(6) Prohibition. See Prohibition, 311.

(8) Habeas Corpus. Habeas Corpus, 311.

See

13. Effect of Acting Without Jurisdic

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1. Definition.-Jurisdiction is the authority by which judicial

1. Note as to Cross References.-This article discusses only such general principles affecting the question of jurisdiction as can properly be treated separately, and as are stated in the analysis. For the convenience of the reader the following table of cross references is here given:

Jurisdiction of Respective Tribunals and Public Officers.-See ADMIRALTY; APPEAL; ARBITRATION; BANKRUPTCY; CONSULS AND AMBASSADORS; COURTS; CRIMINAL PROCEDURE; DEBTS OF DECEDENTS; EQUITY; ERROR, WRIT OF; JUSTICE OF THE PEACE; MILITARY LAW [for COURTS MARTIAL]; PROBATE AND LETTERS OF ADMINISTRATION, etc. etc.

Jurisdiction in Specific Actions.-See BONDS; DIVORCE; EMBEZZLEMENT;

HABEAS CORPUS; NONRESIDENTS;
PARTITION; PARTNERSHIP; QUO
WARRANTO; RECEIVERS; SUMMARY
PROCEEDINGS; TRUSTS, etc. etc.

Jurisdiction Over Specific Persons.-
See CONSULS AND AMBASSADORS;
EXECUTORS AND ADMINISTRATORS;
GUARDIAN AND WARD; HABEAS
CORPUS; PARTNERSHIP; RECEIVERS
AND TRUSTS, etc. etc.

Jurisdiction in Rem.-See CRIMINAL PROCEDURE; EJECTMENT; EQUITY; FOREIGN ATTACHMENT; PARTITION, etc. etc.

Jurisdiction in Personam.-See CRIMINAL PROCEDURE; EQUITY; HABEAS CORPUS, NONRESIDENTS; SERVICE OF PROCESS, ctc. etc.

Jurisdiction Acquired and Lost-See also APPEAL; CHANGE OF VENUE;

officers take cognizance of and decide causes, or, as it has been most frequently defined the power to hear and determine a cause.2 The definition thus limited implies that if a court having power to hear and determine a cause enters a judgment therein, the validity of such judgment is not affected by the power of the court to

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P. 26.

2. Definition. There is perhaps no word in English law that has been more frequently defined than this of "jurisdiction." From the earliest times we find the question of its proper definition engaging the attention of jurists. Thus we find the following: "And jurisdiction is nothing else than to have the authority of judging, that is of pronouncing judgment between parties in actions against persons or things, according as they have been brought into judgment by an authority either ordinary or delegated, concerning which we have spoken above concerning the powers of those who judge." Bracton De Legibus Angliae (Master of Rolls' ed. 1883), vol. 6, p. 159, or lib. 5, tract 5, fol. 400 v. Furisdictio est potestas de publico introducta cum necessitate jurisdicendi, 1 Bulst. 210." The case of the Marshalsea, 10 Coke 73a, or as translated by Mr. Burrill: "Jurisdiction is a power introduced of common right [by public authority or for the common benefit] arising out of the necessity of declaring

the law."

66

"The right by which judges exer

cise their power." Hale's Anal., § 11. "The power of hearing and determining causes, and of doing justice, in matters of complaint." Halifax Anal., v. 3, c. 8, num. 4.

In the United States supreme court in 1832 the word was thus defined by Mr. JUSTICE BALDWIN: "The power to hear and determine a cause is juris diction; it is 'coram judice,' whenever case is presented which brings this power into action; if the petitioner states such a case in his petition that on a demurrer the court would render judgment in his favor, it is an undoubted case of jurisdiction, whether on an answer denying and putting in issue the allegations of the petition, the petitioner makes out his case, is the exercise of jurisdiction conferred by the filing of a petition containing all the requisites and in the manner prescribed by law." U. S. v. Arrendo et al., 6 Peters (U. S.) 691, 709.

And the same justice said later (1838) that "jurisdiction is the power to hear and determine the subject matter in controversy between parties to a suit, to adjudicate or exercise any judicial power over them; the question is, whether on a case before a court, their action is judicial or extrajudicial; without the authority of law, to render a judgment or decree upon the rights of the litigant parties. If the law confers the power to render a judgment or decree, then the court has jurisdiction; what shall be adjudged or decreed between the parties, and with which is the right of the case, is judicial action by hearing and determining it." State of Rhode Island v. State of Massachusetts, 12 Peters (U. S.), 657, 718. See also Grignon's Lessee v. Astor et al., 2 How. (U. S.) 319, 338.

Many of the decisions in the State courts are to the same effect. Thus in a recent case in Indiana (1887), the court, in reversing the court below on an appeal on the ground that the court had not jurisdiction in the case, said: "Two things are absolutely essential to the power of a court to decide a legal controversy-jurisdiction of the subject matter and jurisdiction of the person.

enter the judgment in question. To escape this difficulty there is a tendency in the latest decisions in the United States to hold

Both must exist, otherwise it is the imperative duty of the court to decline to do more than ascertain and declare that it has no power to examine or decide the merits of the controversy. Authors and courts agree upon this rudimentary principle of law. Neither in reason nor upon authority can there be a doubt as to its soundness. Power is essential to the validity of every act, judicial, legislative or executive. Where there is no power to hear and determine, there can be no judicial decision. Expressions of individual opinion there may be, but a' judicial judgment there cannot be. A judicial judgment is the product of power-the power of the law-and is not the mere expression of the individual opinion of a judge. The question is purely and intrinsically one of power, for the jurisdiction of a court consists solely in its power to hear and determine the causes brought to its bar. If jurisdiction does not exist, power is absent, and if power is lacking, an expression of opinion upon any other than a jurisdictional question, although judicial in form, is simply the opinion of its author; valuable, it may possibly be, as an argument, but effective as the opinion of the court it is not." Robertson v. State (Ind.), 7 West. Rep. 481, 488; s. c., 10 Northeast. Rep. 582, 583. Many of the State courts have defined jurisdiction as the power to hear and determine the cause. See Wightman v. Krasner, 20 Ala. 446; Goodman v. Winter, 64 Ala. 410; Tramwell v. Town of Russellville, 34 Ark. 105; Hickman v. O'Neal, 10 Cal. 292; Ex parte Bennett, 44 Cal. 84; Buch v. Hanson, 70 Ill. 480; Schroeder v. Merchants & Mec. Ins. Co., 104 Ill. 71; State v. Lazarus (La.), 1 South. Rep. 361, 391; Bumstead v. Read, 31 Barb. (N Y.) 661; King v. Poole, 36 Barb. (N. Y.) 242; Brownsville v. Basse, 43 Tex. 440; State v. Whitford, 54 Wis. 150, 157.

1. Alleged Defect in Definition. If jurisdiction is simply the power to hear and determine, it follows that a court having jurisdiction of a cause may enter whatever judgment it may think proper, because it is a principle of the common law that the judgment of a court having jurisdiction is conclusive, and therefore there is no tribunal that

could collaterally revise and correct its decision. Thus in a case where, in an adverse proceeding, a decree had been entered restraining a municipal corporation from granting to certain persons the right to construct a railroad on a city street, and subsequently a person had been adjudged guilty of a contempt in not obeying that injunction, and fined on appeal to the court of errors and appeals, JOHNSON, J., in delivering the opinion of the appellate court, quoted the above definition from State of Rhode Island, State of Massachusetts, 12 Pet. (U. S.) 718), ante, n. 2, p. 245), and then continued: "This, I apprehend, points to the true line of enquiry to determine the question of jurisdiction. We are not called upon to say whether the court decided right or not in granting the injunction, but whether it became their duty to decide either that it should be granted or denied. If such was their duty, then they had jurisdiction, and their decision, be it correct or erroneous, is the law of the case until it shall be reversed upon appeal; and can only be questioned upon a direct proceeding to review it, and not collaterally." ple v. Sturtevant, 9 N. Y. 263, 267.

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And in 1809, in an action of ejectment, wherein the defendants relied upon a purchase at an execution issued on a judgment confiscating the said real estate, the plaintiff contended that the act did not authorize confiscation in this case. The supreme court refused to consider this question, because the court which entered the judgment had general jurisdiction in the action, and therefore its judgment, even if erroneous, was not void, and could not be enquired into in a collateral proceeding. Kempe's Lessee v. Kennedy, 5 Cranch (U. Š.) 173.

So in another early case in the United States supreme court (1830), where in a petition for a habeas corpus to inquire into the legality of the petitioner's imprisonment by virtue of a judgment of a United States circuit court, the petitioner alleged that the indictments under which he was convicted and sentenced to imprisonment, charged no offence for which the prisoner was punishable in the court, or of which that court could take cognizance, and consequently that the proceedings

that jurisdiction is not only the power to hear and determine, but also the power to render the particular judgment entered in the particular case.1

were coram non judice, the court refused the writ, MR. CHIEF JUSTICE MARSHALL saying: "We have no power to examine the proceedings on a writ of error, and it would be strange if, under color of a writ to liberate an individual from unlawful imprisonment, we could substantially reverse a judgment which the law has placed beyond our control. An imprisonment under a judgment cannot be unlawful unless that judgment be an absolute nullity; and it is not a nullity if the court has general jurisdiction of the subject, although it should be erroneous." Ex parte Watkins, 3 Pet. (U. S.) 193, 203. Relying on this decision it was held in the United States circuit court, sitting in New York, that "The circuit judge has no jurisdiction to review, on habeas corpus, the judgment of the circuit court, on a conviction and sentence on an indictment, on an allegation that the statute under which such sentence was imposed had been repealed before such sentence was passed." In re Callicot, S Blatch. (U. S.) 89.

And so it has been held in the state courts that, in case of a commitment under the judgment of a court having jurisdiction, the record of the court will only be looked into on a habeas corpus proceeding to ascertain whether a judgment exists, without regard to the question whether it be right or wrong. Ex parte Winston, 9 Nev. 71; People v. Shea, 3 Park. Cas. (N. Y.) 562.

That this is the law in England would seem to be clear. For while on a writ of habeas corpus enquiry will be made into the question whether the court had lawfully acquired jurisdiction in the cases, thus noticing that an arrest was made on Sunday and was therefore illegal. Ex parte Eggington, 2 El. & Bl. 717 (75 E. C. L.). Or that the party petitioner was privileged from arrest. Ex parte Dakins, 16 C. B. 77 (81 E. C. L.). Or that the offence was not indictable. Bushel's Case, 6 Howell's St. Trials 999. Yet it has been expressly decided that it is not competent at the hearing on a habeas corpus proceeding for a person to show by affidavit that the offence of which he was convicted was not committed within the jurisdiction of the convict

ing magistrate, as that is a matter which ought to be decided by the magistrate. Ex parte Smith, 3 H. & N. 227; and where the jurisdiction of the court to try and punish an offence is not denied, another court on a hearing in habeas corpus will not enquire into the authority of the court to pass the sentence imposed, nor is it necessary to set out the authority of the court to pass such senence on the return. Ex parte Brennan, 10 Q. B. 492 (59 E. C. L.).

In the case of inferior courts in England the sentence will be enquired into. Thus in a case where a justice of the peace was empowered to impose a penalty, half of which was to go to the informer and half to the overseers of the poor, and the justice gave the whole of the penalty to the overseers of the poor, it was held that the judgment was void, and that the justice having arrested the defendant for nonpayment of the penalty was liable for damages therefor in an action of trespass. Griffith v. Haines et al., 2 M. & W. 335 (1837). This, however, simply follows the general rule that the record of a justice of the peace must show jurisdiction.

1. Definition Resulting from the Latest Cases.-There is a very clearly defined attempt in the latest cases in the United States, however, to escape from the position that the judgment of a court having jurisdiction to hear and deterinine is conclusive, by adding to the definition of jurisdiction a new element, viz: that jurisdiction is not merely the power to hear and determine, but also the power to render the particular judgment which was rendered. Thus in a recent case (1873), in which it was decided that where a county court having jurisdiction to authorize a sale of a decedent's estate for his debts does autnorize it, and the sale is made, the sale must be presumed in this court to have been regularly made. MR. JUSTICE SWAYNE, in delivering the opinion of the court, said: "The settled rule of law is that jurisdiction having attached in the original case, everything done within the power of that jurisdiction, when collaterally questioned, is to be held conclusive of the rights of the parties, unless impeached for fraud." Cornett v.

Williams, 20 Wall. (U. S.) 226, 250. And in 1876, in a case where the title to certain real estate was involved, it was held that a prior confiscation of this real estate, in a proceeding for a forfeiture in which the record showed that no notice had been given to the owner, was void. MR. JUSTICE FIELD, in delivering the opinion of the court, refers to the preceding cases, quotes the language used in Cornett v. Williams, 20 Wall. (U. S.) 226, 250 (cited supra), as an accurate statement of the doctrine, and further says that "the doctrine" that when a court has once acquired jurisdiction, it has a right to decide every question which arises in the cause, and its judgment, however erroneous, cannot be collaterally assailed, is undoubtedly correct as a general proposi tion, but, like all general propositions, is subject to many qualifications in its application... The doctrine is only correct when the court proceeds after acquiring jurisdiction of the cause, according to the established modes governing the class to which the case belongs, and does not transcend in the extent or character of its judgment the law which is applicable to it. Windsor 7. McVeigh, 93 N. S. 274, 282, 283.

In like manner, although it has been expressly decided in the United States courts that the question whether a matter for which a party is indicted in the district court is or is not a crime against the laws of the United States is within the jurisdiction of said district court, whose decision thereon will not be reviewed in the supreme court by habeas corpus. Ex parte Watkins, 3 Pet. (U. S.) 193, 203; Ex parte Parks, 93 U. S. 18. Yet in a case where a court had imposed a fine and imprisonment, and the statute only conferred power to punish by fine or imprisonment, and the fine was paid, and the court then, at the same term, modified its judgment by imposing imprisonment instead of the former sentence, the supreme court, on a writ of habeas corpus, released the prisoner, on the ground that the second sentence was void for want of power to impose it. Ex parte Lange, 18 Wall. (U. S.) 163. A strong dissenting opinion was, however, filed by MR. JUSTICE CLIFFORD, and MR.JUSTICE STRONG also dissented. But in a subsequent case, where a court martial had revised its sentence and imposed one more severe, and it appeared that the court had power to so revise their sentence in case of mistake,

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In 1879 in the election cases arising out of the act of congress making certain acts by election officers a penal offence against the United States, the supreme court decided that the jurisdiction exercisable by them in habeas corpus proceedings extended to an enquiry into the question whether the act under which the petitioner had been tried, convicted and sentenced was or not constitutional, whether the court had jurisdiction to review the judgment by writ of error or not. Ex parte Siebold, 100 U. S. 371.

was not

And in the Kuklux case, MR. JUSTICE MILLER, in delivering the unanimous opinion of the court, says: "That this court has no general authority to review on error or appeal the judgments of the circuit courts of the United States in cases within their criminal jurisdiction is beyond question, but it is equally well settled that when a prisoner is held under the sentence of any court of the United States in regard to a matter wholly beyond or without the jurisdiction of the court, it is not only within the authority of the supreme court, but it is its duty to enquire into the cause of commitment when the matter is properly brought to its attention, and if found to be, as charged, a matter of which such a court had no jurisdiction, to discharge a prisoner from confinement.

It is, however, to be carefully observed that this latter principle does not authorize the court to convert the writ of habeas corpus into a writ of error by which the errors of law committed by the court that passed the sentence can be reviewed here; for if that court had jurisdiction of the party and of the offence for which he was tried, and has not exceeded its powers in the sentence which it pronounced, this court can enquire no further.” Ex parte Yarbrough, 110 U. S. 651, 653.

In accordance with this modern idea of jurisdiction is the late case (1887) in the United States supreme court of Rosenbaum v. Bauer. In that case a suit was begun in a State court between citizens of different States, in which the plaintiff prayed for a mandamus. The

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