The debates of the convention show, what is still within the recollection of those who were familiar with the proceedings of that body, that upon no one subject relating to the structure of the judiciary system was there a greater diversity of views and opinions than upon the question whether county courts should be established, and, if so, what should be the extent of their jurisdiction. It having been determined by a majority of delegates that such courts should form a part of the scheme to be proposed, one class of delegates were in favor of confining the power of these courts within very narrow limits. Some were even for limiting their jurisdiction to a review of decisions made in justices' courts. Another class were in favor of a much more enlarged jurisdiction. It was finally agreed that, in addition to the jurisdiction in cases arising in justices' courts, the legislature should be authorized to confer upon these courts jurisdiction in such special cases as it should think fit. Had the convention itself been required to define for itself the meaning of its own terms, it would have been found difficult, if not impracticable. Each party seemed willing to adopt the section, vague and indefinite as it was, and take the risk of the construction which might afterwards be given to it, rather than attempt to make it more definite and explicit. Just as the vote *Page 69 upon the adoption of the section was about to be taken, Mr. Patterson, a prominent member of the convention, said: "the phrase `special cases' was interpreted differently by different gentlemen; one saying the legislature, under it, could give no original jurisdiction to these courts, while another contended that it could be given to any extent. They should have words which, at least, the convention itself could understand." But it was thus turned over by the convention to the legislature and the judiciary to settle the boundaries of the jurisdiction of county courts. The task was not easily performed. Legislators and judges have entertained quite as great a diversity of views upon the question as did the delegates who composed the convention. The consequence is, that, though more than ten years have elapsed, the limits of the jurisdiction of county courts are yet undetermined.
Some judges, inclined to a liberal construction, have been disposed to define the word "special," as it is found in the section of the constitution under which the question arises, to mean "specified." These understand the framers of the constitution to have intended to leave it discretionary with the legislature to confer upon county courts jurisdiction in such actions, suits and proceedings as in its judgment the public exigencies might require. Adopting this mode of construction, it would be competent for the legislature to withhold from these courts all jurisdiction beyond a review of cases arising in justices' courts, or to confer upon them a jurisdiction coördinate with that of the Supreme Court.
It is, in my judgment, a fatal objection to this mode of construction, that it fails to give any effect whatever to a most significant and emphatic word, which those who prepared the constitution have been careful to insert once and again in the provision under examination. If this construction is to prevail, the constitution is made to declare that county courts shall, in addition to their jurisdiction in cases arising in justices' courts, have jurisdiction in such *Page 70 other cases as the legislature may prescribe. No effect whatever is given to the word "special." It becomes wholly useless and unmeaning. Without it, the legislature would be required to specify and prescribe the cases in which county courts should have jurisdiction; and with it, according to this mode of construction, there is no limit to the power of the legislature thus to specify and prescribe, and thereby expand the jurisdiction of these courts. Such a construction of the provision in question was adopted by the Supreme Court, and vindicated, in an elaborate argument by two very distinguished judges, in Beecher v. Allen (5 Barb., 169).
Another, and, as I think, a more just and reasonable mode of interpreting the language found in the provision under consideration is, to allow the word "special" to have its natural and ordinary meaning and effect, as a word of limitation, thereby restricting the legislature in what would otherwise be its unrestricted power to confer jurisdiction upon county courts. This was the rule of interpretation adopted by this court inKundolf v. Thalheimer (2 Kern., 593), where it was held that an action for an assault and battery was not a "special case," within the meaning of the constitution, and that the legislature, in attempting to confer upon county courts jurisdiction over such an action, had transcended its own powers.
When the constitution was adopted there were, and perhaps it may properly be said there are yet, two kinds of general jurisdiction, to one or the other of which every case of judicial cognizance belongs. There was legal jurisdiction and equitable jurisdiction. There were cases cognizable in law and cases cognizable in equity. In defining the jurisdiction of the Supreme Court, it was declared that it should have general jurisdiction both at law and in equity. Then, when the framers of the constitution came to provide for the jurisdiction of the county court, they first declared that it should have jurisdiction, subject to the control of the legislature, *Page 71 in all cases arising in justices' courts. They then proceeded to declare that it should also have jurisdiction in special cases, as the legislature might see fit to prescribe, and then further to declare the same thing in respect to "special cases" of equity jurisdiction. The same restriction was imposed upon the legislature in respect to cases of equitable jurisdiction as in cases of legal cognizance. If the legislature could not confer upon county courts jurisdiction in ordinary actions at law, neither could it in ordinary suits in equity. As it has been held that the legislature had no such power in respect to ordinary actions at law, so it must be held in respect to ordinary suits in equity. "There can be no presumption," says Mr. Justice S.B. STRONG, in Hall v. Nelson (23 Barb., 100), "that the convention which framed the constitution intended to authorize the delegation to the county judge of a more extensive jurisdiction in equitable suits than in actions at law."
There is a great variety of special proceedings, exclusive of actions at law and suits in equity, with which every lawyer is familiar, and of which some judicial tribunal must have jurisdiction. The Court of Common Pleas, for which the present county court is, to some extent, a substitute, was, when the constitution was framed, a favorite depository of this kind of special jurisdiction. Mr. Jordan, who was a distinguished member of the constitutional convention, in advocating before that body the continuance of the county court, enumerated twenty-five distinct cases of what he called "miscellaneous duties" performed by that court and its judges, in addition to its ordinary jurisdiction in civil actions. Some of these "miscellaneous duties" were, in their nature, matters of legal cognizance, and others more appropriately belonged to a tribunal of equitable jurisdiction. For this large class of "special cases," and others of a like miscellaneous character, which might from time to time arise, the convention felt it to be necessary to make some provision. When it was determined that a new county court *Page 72 should be organized, whose primary business it should be to review cases arising in justices' courts, it was also thought fit to authorize the legislature, in its discretion, to confer upon this court jurisdiction in these special or miscellaneous cases. This I understand to be the object and import of the provision in the constitution now under examination. The term "special cases" was used to designate that large and diversified class of legal and equitable proceedings, of which, as distinguished from proceedings which are well known and well defined as actions at law and suits in equity, jurisdiction must be vested somewhere, to make a complete judicial system.
We are still left to inquire whether a proceeding for the foreclosure of a mortgage and the sale of the mortgaged premises is a suit in equity of which a county court cannot take jurisdiction, or a special case of which jurisdiction may be conferred upon the county court. The legislature has included this proceeding among the special cases of which the county court should have jurisdiction. But, as was well said by Judge DENIO, in delivering the opinion of the court in Doubleday v. Heath (16 N.Y., 80), "an ordinary action, in use when the constitution was framed, cannot be made a special case by calling it so." In the case just cited, the jurisdiction of the county court, in a proceeding for the partition of lands, was sustained, but it was upon the express ground that the proceeding was "a special statutory proceeding, instituted to take the place of the tedious action by original writ out of chancery." In England, suits for partition, under a statute enacted for that purpose, had become regular actions. In alluding to the English practice, Judge DENIO says: "If this had been continued in this state, and the present action was of that character, I do not see how it could be considered a special case within the constitutional provision."
The practice of bringing a suit in equity for the foreclosure of a mortgage has long existed. There is no more familiar branch of equity jurisdiction. There is nothing in *Page 73 such a suit more peculiar or extraordinary than in any other suit in equity. In a limited sense, every suit in equity is "special." For while, in suits at law, the judgment is confined to the recovery of money or property, it is the distinctive feature of a suit in equity that the judgment is adapted to the special circumstances of each particular case. But a suit to foreclose a mortgage is no more a special case than a suit to compel the specific performance of a contract or to avoid a fraudulent conveyance. If jurisdiction in a suit to foreclose a mortgage can be conferred on the county court because it is a special case, I know of no other suit of equitable cognizance of which the same thing might not be said with equal propriety. To hold that such a suit is a special case, within the scope and meaning of the phrase, as used in the constitution, and that therefore the legislature had the power to invest the county court with jurisdiction in such a case, would, in my judgment, be equivalent to a declaration that the legislature may, in its discretion, confer such jurisdiction upon county courts in all equity cases. A construction involving such a consequence can but be erroneous. A suit for the foreclosure of a mortgage is as common in a court of equity as an action for assault and battery in a court of law. If the latter cannot be regarded as a special case within the meaning of the constitution, the same rule of interpretation must also exclude the former. I am, therefore, of opinion that the legislature, when it declared that the county court should have jurisdiction in cases for the foreclosure or satisfaction of mortgages, exceeded its constitutional powers.
The judgment of the Supreme Court, therefore, should be affirmed.
Judgment reversed, with leave to plaintiff to withdraw demurrer and go to trial on issue of fact. *Page 74