dissenting. While I dissent from the opinion of the court as announced by the chief justice, I consider it due to counsel, as well as myself, to attempt to assign some reason therefor; and while I do' not dissent from some propositions necessary to be considered in forming the opinion of the court as announced, yet I do dissent from that relating to the authority of this court to exercise original jurisdiction in mandamus, and *288tbe sufficiency of tbe complaint to entitle tbe petitioners in any court to tbe relief tbey demand, and also to tbe denial to tbe respondents of a trial by jury. I discuss these in tbeir order:
First. As to tbe original jurisdiction of this court.
Questions of judicial jurisdiction are questions of special importance ; and while courts are clothed with unrestricted rigor in tbe exercise of tbeir judicial powers, yet jurisdiction cannot be invoked except upon subjects, and by those for whom written authority exists, either in tbe constitution, acts of congress or other legislation thereunder. And courts, always keeping in view this principle, have always hitherto, with great uniformity, disclaimed jurisdiction not thus expressly given, and always taken notice of an objection to their jurisdiction whenever it occurred and however presented, even against the consent of parties.
The only jurisdiction possessed by the several courts of this Territory is derived from the acts of congress, either directly conferred, or by authority delegated to the legislative assembly of the Territory to confer the same. So that in order to ascertain the jurisdiction of our courts we must first look to the acts of congress i*elative thereto, all of which is contained in the ninth section of the act organizing this Territory. By virtue of this act, the Territory is vested with four distinct courts, viz.: a supreme court, district courts, probate court and justices of the peace. Upon the supreme and district courts the act directly conferred appellate and orig'mal jurisdiction, and also chancery and common-law jurisdiction. IJpon the probate and justices’ courts it conferred no jurisdiction, but confided the same solely to the legislative assembly of the Territory. It provides : “ The jurisdiction of the several courts herein provided for, both appellate and original, and that of probate courts and of justices of the peace, shall be as limited by law, provided that justices of the peace shall not have jurisdiction of any matter in controversy when the title of land may be in dispute, or where the debt or sum claimed shall exceed $100; and the said supreme and district courts, respectively, shall possess chancery as well as common-law jurisdiction.”
From this provision of the Organic Act it is claimed that this court can exercise original jurisdiction in mandamus, simply be*289cause of tbe words “ Tbe jurisdiction of tbe several courts herein provided for, both appellate and original, * * * shall be as limited by law.” Sncb would be a forced construction in favor of jurisdiction, a construction unwarranted and unknown to tbe law. When tbe congress of tbe United States created tbe courts of this Territory it classified tbe jurisdiction between tbe supreme and district courts, and in so doing confined and conferred upon one appellate and upon tbe other original jurisdiction, and thereby prohibited tbe legislative assembly of tbe Territory 'from in any manner transferring or altering the same, but it left to it tbe power to regulate tbe extent, and tbe mode and manner in which the courts should exercise tbe same; that is, tbe manner in which tbe supreme court should exercise appellate jurisdiction, and tbe district courts original jurisdiction.
Tbe words, “ tbe several courts,” clearly refer to the supreme court, with its jurisdiction appellate, and to tbe district court with jurisdiction original.
What was evidently intended by the Organic Act, which provides that “ Tbe jurisdiction of tbe several courts herein provided for (meaning tbe supreme and district courts), and that of probate courts and of justices of tbe peace, shall be as limited by law,” was, that tbe legislative assembly might limit by law tbe jurisdiction appellate of tbe supreme court, and tbe jurisdiction original of tbe district courts, with sole power over tbe other courts except as to tbe amount in controversy and tbe title to lands.
This construction of tbe Organic Act is in perfect harmony with tbe distinction ever intended to be observed between similar superior and inferior courts, and thus relieves tbe judicial system from that complex and unprecedented condition into which it would fall if Tooth courts exercised jurisdiction alike, and without tbe right of appeal. Such has hitherto been tbe limit recognized by our legislature, as well as all others possessing a similar Organic Act.
But tbe chief justice, in bis elaborate and exhaustive opinion, insists, that if such be tbe correct construction of tbe Organic Act then all appeals from tbe inferior courts to tbe district courts are without authority and void. Such assertion and such conclusions are without foundation in law. Tbe very chief functions of a *290supreme court are tbe exercise of appellate and supervisory jurisdiction over inferior tribunals. And tbe uneontroverted doctrine relative to tbe scheme of judicial tribunals is, that one of tbe great missions of courts of record, having original jurisdiction, is to receive appellate jurisdiction under legitimate legislation, and to all such courts appellate jurisdiction is necessarily implied. But it was never tbe province of supreme appellate courts to receive original jurisdiction, unless expressly conferred upon them by law. But if this long and well-established doctrine is to be overcome by mere assertion, without authority or logical reasoning, I can no better maintain my proposition than by referring to the second section of our amended Organic Act, where express provision is made for appeals from the inferior courts to the district courts. Our legislature recognized this fundamental law and engrafted the same into our practice, and then made express provision for all such appeals to the district court. Cod. Sts. 161, § 621.
Again, the chief justicé seeks to support his view of original jurisdiction under the grant extending to “the several courts” chancery and common-law jurisdiction. The conferring of this jurisdiction certainly did not create any new powers or originate any new modes of administering justice. If this doctrine of indiscriminate jurisdiction be correct, then in all cases wherein the district court has original jurisdiction the supreme court has the same, and when exercising it, as in the case at bar, we would have no appellate court. Such would not only be manifest injustice to the suitor, but would defeat the expressed will of congress.
This effort to take jurisdiction, both at common law and under the statute, is in direct opposition to the holding of the supreme court of the United States in the case of Williamson v. Berry, 8 How. (U. S.) 495, where the court holds that a court of chancery or equity powers, exercising jurisdiction in particular cases by virtue of a special statute, cannot deviate from the letter of the act, nor make a decree founded part upon the statute and part upon, its general jurisdiction (as in the case at bar). See, also, Bollman v. Swartwout, 4 Cranch, 93; Sheldon v. Sill, 8 How. (U. S.) 441.
*291The authorities cited in the opinion of the court in favor of jurisdiction are few, meagre, and to me quite unsatisfactory. But one single authority is cited from territorial courts, that from Colorado, where one of the three judges was a party to the suit, and the other two, disagreeing, whereby the writ was denied. And in that case the question of jurisdiction over the subject of the action was not raised; it was the' jurisdiction of the court over the person of the defendant only that was raised. People v. Hallett, 1 Col. 362.
The case of Kendall v. United States, 12 Peters, is cited in the opinion of the court in support of the- jurisdiction. This is a case containing 48 pages, and it is not strange that, in the short time the court has had in which to examine the many authorities presented on the various questions involved, it should be led into error, as it evidently has been. This case is not analogous to the one at bar. Instead of supporting the proposition, maintained by a majority of the court, it more nearly maintains the doctrine that no court can exercise original jurisdiction in mandamus unless expressly conferred upon it, as in that case it was conferred upon the circuit court of the District of Columbia. Let any disinterested, unbiased lawyer carefully examine that opinion, and he will readily see its inapplicability to the case at bar.
The case of Hornbuckle v. Toombs, 18 Wall., is also cited in support of the position of the court. This decision, when construed in the light of the facts, comes far short of being an authority therefor. The most that is there held in support of the authority of the legislative assembly to confer this jurisdiction is, that such power map be conferred, subject, however, to specified or implied conditions. This, instead of being authority in favor of the jurisdiction, is, by analogy and parity of reasoning, in opposition to it; for I maintain that our Organic Act not only implies that this jurisdiction shall not be conferred but by a fair and reasonable construction ; it specifies that it shall not be except in an appellate form.
I am well aware that excerpts may be selected from different decisions, especially in obiter dicta, which would seem to present an apparent difference in the holdings of courts upon this question; but when the facts, in each case, are carefully consid*292ered, and those excerpts and obiter dicta construed in the light of the facts in. each case, it will be found that there is no substantial difference in the rulings of the courts upon this question. But even were I to concede that the Territorial legislature had power given it, whereby to confer jurisdiction upon this court, I insist that it never did confer it.
The only pretended authority is from section 518 of our Practice Act, which provides, “ it (the writ of mandate) may be issued by any court in this Territory except a justice’s, probate or may- or’s court.” No one doubts but that the supreme court in the exercise of appellate jurisdiction could issue such a writ. But that it was not given original jurisdiction to hear, determine or issue the writ, is, to me, from an examination of the statute seeking to regulate the practice in mandamus, too apparent to admit of argument. Let any lawyer carefully examine section 523 of that act, where it is provided that the court may (and as I think in justice, it always ought) grant a trial by jury, and then let him imagine what speedy justice would be guaranteed in á court that need not convene only once a year. Let him also examine section 525 of that act which relates to motions for a new trial, which are to be brought on before the judge — not the three judges. Let him examine every section of that act, and I submit, the inevitable result of his investigation will be that our entire statute upon mandamus is wholly inapplicable to any other than the -district courts. But I will not longer pursue this branch of the case, and will refer to the following authorities, viz.: Article 3, Constitution United States ; Marbury v. Madison, 1 Cranch, 174; 3 Abb. N. Digest, 245, § 5 ; People v. Kern. Co., 47 Cal. 205 ; Tyler v. Houghton, 25 id. 28; Smith’s Com. Const. Law, §§ 445, 490, 491; Kendall v. United States, 12 Pet. 524; Cod. Sts. 160, §617. And wherein district courts have original jurisdiction, “ as limited by law,” see Cod. Sts. 161, §§ 620, 621, 622, 624.
Second. As tó the sufficiency of the complaint.
This is an action against the governor, the secretary and marshal of the Territory, to compel them to procure an abstract of the votes of Meagher county, and to canvass the same with those of the other counties, and to proclaim the result, upon the alleged ground that the abstract of Meagher county, as canvassed, was incorrect, false and forged.
*293Before tbe writ of mandamus will ever issue there must be a default — and there must also be a demand — a request to perform the required duty. There' is neither fraud, default or demand averred against the defendants by the plaintiffs. The fifth and sixth sections of the laws of the eighth session, p. 45, together with the twenty-ninth and thirtieth sections of the codified laws, p. 466, define the respective duties of the defendants upon this subject. It nowhere makes it the duty of the governor or marshal to • send for or procure defaulting abstracts. The secretary alone is required to do this, and the legal presumption is that he would do so when requested; if not, then, and then only, would this action lie against him. But to assume that the marshal and governor would, when such abstracts were procured, refuse to perform the duty, then, and not until then, enjoined upon them by law, would be an unwarrantable assumption by any court. The duty required is not a joint one, until after all the abstracts are procured. Had no abstracts been procured, could the governor and marshal, or either, have been required to procure them % Clearly not. Then how are they proper parties to this suit, to be subjected to costs and the vexation of defending the same ?
As to the necessity of averring and proving a demand and refusal, some authorities have been cited, such as High on Ex. leg. Bern., and State v. Bailey, 7 Iowa, 397, which, at first sight, would seem to be innovations upon the long and well-established rule which requires a demand to precede the action. But upon a careful and critical examination of these few authorities it will be found that the rule, as there laid down, only seeks to vary the rule in cases of seeming absolute necessity, arising, as these authors say, “ where no individual interest is affected, and where no one is empowered to make demand,” which is not the case at bar. Here the plaintiffs aver an individual interest, and make that the very basis of their right to maintain the action. If so, they have the authority to make the demand, as was always required by law, in all ages, under like circumstances, as is so authoritatively recognized and sanctioned by the following authorities: Moses on Mandamus, 18, 202, 204; Tapping, 282; United States v. Boutwell, 17 Wall. 607; People v. Romero, 18 Cal. 91; Crandall v. Amador Co., 20 id. 75; A. & *294A. on Corp., § 707; Rex v. Wilts C. Co., 3 A. & E. 481, and the numerous authorities there cited.
Third. The remaining point, from which I dissent, is that of denying the right of trial by jury, which, being announced orally, I cannot now recall the exact language used by the court as reasoning therefor, except the discretionary power as contained in the 523d section of our Practice Act. Courts, when attempting to exercise judicial discretion, would be more likely to administer justice according to law by observing the doctrine of Chief Justice Marshall, who says: “ "When courts are said to exercise a discretion, it is a mere legal discretion; a discretion to be exercised in discovering the course prescribed by law, and is never exercised for the purpose of giving effect to the will of the judge.”
If, then, this is an action under our Code of Practice, and an issue of fact joined, which is not denied, then section 190, p. 64, is in direct conflict with section 523, p. 142, from which my brethren derive their discretion power, whereby they denied the right of trial by jury; for, by section 190, it is provided that all issues of fact shall be tried by a jury, unless it be waived.
But the supreme court of the United States has, very lately, set at rest any doubt as to the character of this action. In Heine v. Levee Commissioners, 19 Wall. 660, Justice Millek, in delivering the opinion of the court, says: “Mandamus is essentially and exclusively a common-law remedy, and is unknown to the equity practice.”
Although it has, at all times, been the uniform practice of courts to try all such issues of fact by jury, yet congress, perhaps fearing that Territorial courts might do as has just been done, did, in April, 1874, pass an act entitled “An act concerning the practice in Territorial courts,” wherein it is provided: “ That no party has been or shall be deprived of the right of trial by jury in cases cognizable at common law.” 18 U. S. St. 27.
Here, then, the supreme court of the United States has declared mandamus to be exclusively a common-law remedy, and the congress of the United States has guaranteed to it the right of trial by jury. But the supreme court of Montana ignores it all and denies this right.
*295With all due deference to and respect for tbe opinion of my brethren, and with an equal desire that right and justice shall be maintained, yet, to judicially obtain the same in utter disregard of the plain provisions of the law, as I understand it, I can never give my assent.