176 Ind. 72 | Ind. | 1911
Lead Opinion
The petitioner herein, J. Fred France, Clerk of the Supreme Court and ex-officio Clerk of the Appellate Court, has presented a petition to the Supreme Court, whereby he invokes its judgment in respect to his official duty of transferring to the Supreme Court undistributed cases pending in the Appellate Court, and in transferring to the Appellate Court, eases pending in the Supreme Court, as required by §2 of an act of the legislature in force on March 3, 1911 (Acts 1911 p. 201) entitled “An act entitled an act concerning appeals to the Supreme and Appellate Courts, defining the jurisdiction of each of said courts, providing for the distribution of cases appealed and not distributed, repealing all laws in conflict * * * and expressly repealing §10 of an act, ’ ’ etc.
Section two of said act provides that “immediately upon the taking effect of this act the Clerk of the Supreme and Appellate Courts shall transfer to the Supreme Court all cases then pending in the Appellate Court, not distributed, the jurisdiction of which is by this act conferred upon the Supreme Court, and docket the same in the Supreme Court, and such Clerk of the Supreme and Appellate Courts shall also transfer to the Appellate Court all cases then pending in the Supreme Court not distributed, the jurisdiction of which is by this act conferred upon the Appellate Court, and docket the same in the Appellate Court,” etc.
Section three provides that “all cases now pending in the Appellate Court and not distributed, and all cases hereafter appealed or transferred to the Appellate Court shall be distributed in the order of their submission and placed upon the docket of the division to which they are distributed, irrespective of the district from which such appeals may have been taken.”
Section four declares that “the jurisdiction of the Appellate Court in all cases in which jurisdiction is hereby conferred upon said court shall be final.”
By section five all laws or parts of laws in conflict with the act are repealed,' and section ten of an act approved March 12, 1901 (Acts 1901 p. 565), entitled “An act concerning appeals, increasing the number of judges of the Appellate Court, providing that the same shall sit in two divisions,
It is argued with much force by counsel opposing the validity of the act that by the provision of §4, which declares that “the jurisdiction of the Appellate Court in all cases in which jurisdiction is hereby conferred upon said court shall be final,” and by the express repeal of §10 of the act of 1901, supra, the legislature has attempted to make the Appellate Court coordinate with the Supreme Court, and to deprive the latter court of its superior authority, vested in it by article 7, §§1, 4, of the Constitution of this State. In the determination of the questions herein involved, it is necessary to set out some of the provisions of the Constitution. By article 3 the powers of the state government are divided into three separate departments, namely, the legislative, the executive, including the administrative, and the judicial, and no person charged with the official duties under one of these departments shall exercise any of the functions of another except as in the Constitution expressly provided. Article 7, §1, of the Constitution declares that “the judi
A Supreme Court of this State has existed ever since the year 1816, in which year our first Constitution was adopted and the State admitted into the Union. Article 5, §1, of the Constitution of 1816 declared that “the judiciary power of this State, both as to matters of law and equity, shall be vested in one Supreme Court, in circuit courts, and in such other inferior courts as the General Assembly may from time to time direct and establish.”
In our Constitution of 1851 the section of the Constitution of 1816 just quoted, with some minor changes, was incorporated into article 7, §1, and as then adopted reads as follows: “The judicial power of the State shall be vested in a Supreme Court, in circuit courts, and in such inferior courts as the General Assembly may establish.” This section, as a part of the Constitution of 1851, remained unchanged for thirty years, during which time the phrase “such inferior courts” was construed by the Supreme Court as prohibiting the legislature — impliedly at least — from
The decisions in these cases, reenforced by the opinion of able lawyers, that all courts created by the legislature must necessarily, by the force of the words “such inferior courts as the General Assembly may establish,” be inferior to the circuit courts, led to a proposed amendment of article 7, §1, of the Constitution of 1851, empowering the General Assembly to establish courts that would not be inferior to the circuit courts. Consequently, in 1877, an amendment to this section was proposed by the legislature. By it the word “inferior” was eliminated from article 7, §1, and the word “other” was inserted instead. On account of the holding of the Supreme Court in the case of State v. Swift (1880), 69 Ind. 505, this amendment was not finally ratified by the electors of the State and made a part of the Constitution until March 14, 1881.
6. The controlling power of the Supreme Court of this State within its functions has been frequently recognized and affirmed by that tribunal. State, ex rel., v. Noble (1889), 118 Ind. 350, 4 L. R. A. 101, 10 Am. St. 143; Ex parte Griffiths, supra; Branson v. Studebaker (1892), 133 Ind. 147; Pittsburgh, etc., R. Co. v. Peck (1909), 172 Ind. 562.
The case last cited arose because the Appellate Court called in question the final and conclusive character of an order of the Supreme Court, transferring that case to the Appellate Court, oh the ground that jurisdiction thereover, under the law, was lodged in the latter court. In passing upon the question as there involved the court said: “Under
In the case of State, ex rel., v. Noble, supra, the court, on page 369, said: “Under our Constitution, as amended, the legislature may establish courts, but it cannot destroy the constitutional courts — the circuit courts and the Supreme Court — nor can it change their organization nor redistribute their powers, for these courts owe their organization to the Constitution, and as the Constitution has ordained that they shall be organized, so they shall be. Judicial power distributed by the Constitution is beyond legislative control. * * * The duty of maintaining the separation of the departments of the government and the integrity and existence of the courts as established and organized by the Constitution, is one of the most important that the judiciary is required to perform. It is the duty of the courts to uphold the Constitution as it is written, and to yield no part of their right or authority. Judges are chosen for the purpose of maintaining the limitations of the Constitution, without which free government cannot exist. As said by the court of appeals of New York: ‘If this provision were intended solely for the protection of the courts or its judges they might waive it; but we do not think it was so intended. It was, in our judgment, like the whole judicial system of the state, intended for the benefit of the people, and to secure to litigants a forum in which they might have their contro
In the case of Branson v. Studabaker, supra, it is said: “Tho Supreme Court is undoubtedly the highest judicial tribunal of the State, and takes its rank from the Constitution. As its rank is bestowed upon it by the Constitution, the legislature cannot lower that rank or deprive it of the authority incident to its position as the superior judicial tribunal of the State. * * * It is not in the power of the legislature to make the Supreme Court inferior in any respect, to any other tribunal; but in it remains secure from legislative attack, the highest judicial power distributed by the Constitution. There must be in every state a court capable of exercising ultimate judicial power, otherwise there would be unending conflict. In this State there is a court invested with ultimate judicial power, and that is the Supreme Court. * * * The legislature cannot, under the guise of conferring inferior appellate jurisdiction upon other tribunals, grant them unlimited appellate jurisdiction; but it may grant such tribunals appellate jurisdiction by limiting it to classes of cases not of the highest grade, and restricting its authority to appeals from recoveries of a limited nature.”
After the creation of the Appellate Court much controversy arose among judges and lawyers of this State in regard to the constitutional validity of the act creating it. This was especially true in regard to the provision that declared that its decisions should be final in the absence of any authority giving the Supreme Court any supervising control thereover. It was contended by able lawyers that by this finality provision in the statute the Appellate Court, to the extent of the jurisdiction conferred upon it, was made coordinate with the Supreme Court. In fact, on account of the supposed absence of authority on the part of the Supreme Court to exercise, in some manner, a revisory right over the decisions of the Appellate Court, in order to make them conform, i£ necessary, to the ruling precedents of the Supreme Court, and thereby keep them in harmony with those of the latter court, two lines of decisions were created. Consequently, there arose much confusion in respect to the controlling law in a particular case. Under the circumstances as they then existed, that question seemingly depended upon the court to which the cause might finally be appealed. To remedy this condition of affairs, and to eliminate from the act creating the Appellate Court the provision impressing its decisions unconditionally with finality, the legislature in 3901 (Acts 1901 p. 565, §1337a et seq. Burns 1901) enacted a statute revising the law pertaining to that tribunal. This was entitled “An act concerning appeals, increasing the
It was declared by §9 of this act (§1337i, supra) that “no appealable case shall" hereafter be taken directly to the Supreme Court unless it be within one of the following classes: First. Cases in which there is in question, and such question is duly presented, either the validity of a franchise, or the validity of an ordinance of a municipal corporation, or the constitutionality of a statute, state or federal, or rights guaranteed by the state [or] federal Constitution. Second. All prosecutions for felonies. Third. Actions to contest the election of public officers. Fourth. Cases of mandate and prohibition. Fifth. Cases of habeas corpus. Sixth. Actions to contest wills. Seventh. Interlocutory orders appointing or refusing to appoint receivers, and interlocutory orders granting or dissolving or overruling motions to dissolve temporary injunctions. Eighth. Proceedings to establish public drains and proceedings to change or improve watercourses. Ninth. Proceedings to establish gravel roads.”
It was provided by this section that all other appealable cases should be taken to the Appellate Court. By §10 of this act (§1337j, supra) it was declared that “the jurisdiction of the Appellate Court shall be final except under the following conditions: First. If in any case, two of the judges of either division are of the opinion that a ruling precedent of the Supreme Court is erroneous, the case, with a written statement of the reasons for such opinion, shall be transferred to the Supreme Court.”
The second condition was that the losing party in any ease decided by either division of the Appellate Court might, within thirty days after the overruling of his petition for rehearing by the Appellate Court, file in the Supreme Court an application for the transfer of the case to that court, on the ground that the opinion of the Appellate Court contravened a ruling precedent of the Supreme Court, or that a
The third condition was that in any ease decided by either division of the Appellate Court the losing party shall have the right to appeal to the Supreme Court when the amount in controversy, exclusive of costs and interest on the judgment of the trial court, exceeds $6,000.
The purpose of the provision of §1337j, supra, which authorized transfers from the Appellate Court to the Supreme Court, was not in the interest of the losing litigant, but was to give the Supreme Court a revising hand over the opinions of the Appellate Court, when necessary, in order to control the declaration of legal principles contained therein. Klein v. Nugent Gravel Co. (1904), 162 Ind. 509; United States Cement Co. v. Cooper (1909), 172 Ind. 599.
In the latter case the court said: "The obvious purpose of the legislature in providing for this class of transfers from the Appellate Court to the Supreme Court was to keep the decisions of the two courts of appeal harmonious and consistent, and thus avoid the confusion that would arise from two incompatible lines of legal interpretation.” Upon the same point see Terre Haute Electric Co. v. Roberts (1910), 174 Ind. 351. The act of 1901, supra, expressly repealed all provisions of former acts limiting the existence of the Appellate Court, and thereby the life of that tribunal was continued indefinitely — at least until abolished by the legislature.
It is well-known that the drafting of said act was, in part at least, the work of the judges then composing the Supreme and Appellate Courts, and the provision therein for transfers, on the application of the losing party, from the Appellate Court to the Supreme Court was, to an extent, modeled
To reassert what we have previously said, the provision of §1337j, supra, authorizing the transfer of a case from the Appellate Court to the Supreme Court, on the ground that the opinion of the Appellate Court contravenes a ruling precedent of the Supreme Court, or that a new question of law is directly involved and was decided erroneously, was intended to give to the Supreme Court of this State a revising hand over the decisions of the Appellate Court, as was the purpose of the act of Congress authorizing the Supreme Court of the United States to remove by certiorari cases from the Circuit Court of Appeals to the Supreme Court of the United States.
In 1907 (Acts 1907 p. 237, §1, §1392 Burns 1908) the legislature amended §9 of the act of 1901, supra. By this amendatory statute the Supreme Court was given jurisdiction over additional cases, among which were those wherein the judgment of the trial court exceeded $6,000. By this same act, subdivision three of §1337j, supra, which provided for appeals from the Appellate Court to the Supreme Court in cases of a money recovery in the lower court in excess of $6,000, was repealed. The obvious reason for the repeal of this provision was that under this amendatory act an appeal from the trial court from a money judgment in excess of $6,000 was to be taken directly to the Supreme Court.
The statute of 1901, supra, as amended by the act of 1907, supra, appeared to be satisfactory to both the bar and the bench of this State, and remained in full force and effect at the time the act of 1911 (Acts 1911 p. 201) was passed. In view of the decisions of the Supreme Court, declaring the purpose for which the transfer provision in that act was in
A loading authority on the point in controversy sums up the law as follows: “Where a court is by the constitution placed at the head of the judicial system of a state, there being no appeal from its judgments to any other state tribunal, the legislature cannot interfere with its existence or supremacy, nor can that body alter the nature of its jurisdiction and duties, nor create a court of coordinate final jurisdiction, for no statute can in such case deprive the court of last resort of its rank as the highest and ultimate judicial power; but where the constitution expressly or impliedly so permits, or where Us judgment is subject to review by the court of dernier resort, or where its jurisdiction is so limited that it cannot equal that of the highest court, an intermediate appellate court may be created having even final jurisdiction, where the constitution is not exclusive in respect to supreme courts as courts of last resort.” (Our italics.) 11 Cyc. 706. In further support of this proposition see the following cases: Branson v. Studebaker (1892), 133 Ind. 147; State, ex rel., v. Noble (1889), 118 Ind. 350, 4 L. R. A. 101, 10 Am. St. 143; Ex parte Griffiths, supra; Board, etc., v. Albright, supra; Pittsburgh, etc., R. Co. v. Peck (1909), 172 Ind. 562; People, ex rel., v. Circuit Judge (1877), 37 Mich. 474; Brown v. Buck (1889), 75 Mich. 274, 42 N. W. 827, 5 L. R. A. 226, 13 Am. St. 438; Henderson v. Beaton (1879), 52 Tex. 29; State v. Jones (1845), 8 Rob. (La.) 573; Flanigan v. Guggenheim Smelting Co. (1899), 63 N. J. L. 647, 44 Atl. 762; State, ex rel., v. Vallins (1897), 140 Mo. 523, 41 S. W. 887; Sharpe v. Robertson (1849), 5 Gratt. (Va.) 518; Traphagen v. Township, etc. (1877), 39 N. J. L. 232; In re Court of Appeals (1886), 9 Colo. 623, 21 Pac. 471; In re Court of Appeals (1890), 15 Colo. 578, 26 Pac. 214; People, ex rel., v. Richmond (1891), 16 Colo. 274, 26 Pac. 929; Berk
In the case of In re Court of Appeals (1886), 9 Colo. 623, the supreme court of Colorado held that an intermediate court, having appellate and final jurisdiction, could not be legally created by the legislature. The court in that ease said: “The judicial power, both appellate and original, lodged by the constitution in the supreme court, cannot be transferred to another court created by the legislature in any manner so as to make its decisions and opinions final. This jurisdiction is lodged in ‘a supreme court.’ Two such courts with like jurisdiction and powers are not contemplated by the constitution.”
In the case of People, ex rel., v. Circuit Judge, supra, the question arose as to the power of the legislature to deprive the circuit courts of any portion of their appellate jurisdiction over the courts of the justices of the peace. Cooley, C. J., who wrote the opinion in that case, said: “Both these classes of courts are constitutional courts, and so far as any jurisdiction is conferred upon either by the constitution, it is beyond the reach of the legislative power. * * * While it may be and has been claimed that the appellate jurisdiction still remains, though some eases are removed from its scope, there can be no plausible argument, as we think, that the supervisory control is left unimpaired when as to a large class of cases it is wholly superseded, and the control conferred upon another tribunal. Any reasoning that would support such legislation would justify a like apportionment of the probate jurisdiction between the constitutional probate court and the municipal courts of legislative creation.”
The case of Henderson v. Beaton, supra, deals with an act of the legislature creating a commission, whose members were styled “Commissioners of Appeals,” to relieve the accumulation of business in the supreme court and the court of appeals. The court in that case held that if in a case involving life, liberty or property, litigants were denied the right to resort to the constitutional courts of that state, and were required to go before different tribunals, organized perhaps under unfavorable circumstances and in a manner less calculated to receive wise and impartial adjudications, the constitution would be violated. It was there said that “the constitutional courts are designed to secure the citizen in his rights and to enforce the observance of constitutional limitations. ’ ’
In the case of People, ex rel., v. Richmond, supra, a question quite similar to the one involved in the case at bar was considered. The supreme court said: “There can be no doubt about the supremacy of the supreme court. This court is placed by the constitution at the head of the judicial system of the state; from its judgments there is no appeal to any other state tribunal, and its determinations are binding upon the rest of the state judiciary. The legislature cannot interfere with its existence or supremacy; nor can that body alter the nature of its jurisdiction and duties. And it follows of course that, without change in the fundamental law, the legislature cannot create a court of coordinate final jurisdiction. In re Court of Appeals [1886], 9 Colo. 623, 21 Pac. 471; In re Court of Appeals [1890], 15 Colo. 578, 26
In the ease of Traphagan v. Township, etc., supra, the supreme court of New Jersey declared that the legislature was without capacity to change the nature of the supreme court, either by directly abridging its original power, or by weakening its authority by lodging it coordinately in some other tribunal.
In the case of Berkenfield v. People, supra, the supreme court of Illinois held that the act creating an appellate court was not unconstitutional, because its judgments might be reviewed by the supreme court on appeal.
In Elliott, App. Proc. §2, it is said: “Where the constitution defines the jurisdiction of a court the legislature cannot take it away, nor, indeed, change it in any material respect. As a corollary of this principle it must follow that where a supreme court is created by the constitution with ultimate appellate jurisdiction, the legislature, although it may have the power to establish courts, cannot take away the superior appellate jurisdiction. The Constitution of Indiana creates a Supreme Court, and makes it the highest judicial tribunal of the State, so that while inferior tribunals may be created, a higher one cannot be established by the legislature. While the legislature cannot rightfully, or constitutionally, take away the supreme appellate jurisdiction of the Supreme Court, it may regulate the procedure, designate the amount that shall authorize an appeal, and, within limits,designate the class of cases that may be appealed; but it cannot, under the guise of regulating the procedure or the right of appeal, take away the essential jurisdiction of that court as the highest court of error or appeals.”
The same author also says (Elliott, App. Proc. §5) : “It.
Certainly it does not alter the case that the legislature, after wholly stripping the Supreme Court of all appellate jurisdiction in such cases, then, by the act in question, confers final jurisdiction thereover upon another court of its own creation. That which the legislature is by the Constitution prohibited from doing directly, it cannot do indirectly. The question with which we have to deal has never been before this court.
The cases referred to by counsel seeking to uphold the validity of the act arose soon after the creation of the Appellate Court, which was established by the legislature only temporarily. The first case is Ex parte Sweeney (1891), 126 Ind. 583, which arose out of the request of the Clerk of the Supreme Court for instructions in regard to what cases, under the act creating the Appellate Court, should be distributed by him to that court. No constitutional question, either as to the validity of the court or its jurisdiction under the statute creating it, was raised in that case.
In the case of Branson v. Studebaker (1892), 133 Ind. 147, the jurisdictional question raised was whether the title to real estate was in issue; if so, jurisdiction under the statute was in the Supreme Court. Nothing was said by the court that militates in any way against our holding in the ease at bar. The court apparently based the validity of the statute creating the Appellate Court wholly upon the ground that its jurisdiction was so limited as to prevent it from equalling in authority the Supreme Court.
The ease of Newman v. Gates (1898), 150 Ind. 59, arose upon a petition for a writ of certiorari to be issued by the Supreme Court to the Appellate Court, to require the latter
All of which is ordered and adjudged by this court.
Morris and Cox, JJ., dissent.
Concurrence Opinion
Concurring Opinion.
If the members of the court were free to consult their individual dispositions in this case, I should be disposed to lodge the responsibility with the legislature, ignoring the results, but we are not thus free, and cannot escape the responsibility imposed upon us.
This court is charged under the Constitution with the duty of upholding its constitutional integrity, and I am unable to bring myself to see it in any other light than that the act in question is the entering wedge to the ultimate destruction of the supremacy of the court. For, if its jurisdiction to declare what is the supreme law of the State can be devested, as is proposed by this act, then it is but a step further upon the same reasoning to strip the court practically of all jurisdiction of questions, both small and great, in which the dearest interests of the most lowly citizen may be involved, or vast sums of money which may affect those interested even more than the small property of the humble citizen. That
It is urged that the act grew out of the exigencies of the times. To say that to expedite the business of those who are before the court is desirable, can never be a just reason for disregarding the organic law, one of the very purposes of which is to guard against the press of exigencies that may sweep away fundamental landmarks or overthrow governments. Expediency can never be an excuse for a court to overthrow a constitution. But because of the exigencies presented by the increase of business in the Appellate Court which, notwithstanding the most arduous labor of its members, cannot be kept pace with, what would be the result if the act were held valid? There are pending in the Supreme Court 286 cases, and in the Appellate Court 764 cases. Seventy-five per cent of the cases in the Supreme Court would be retained, and forty-five per cent of those in the Appellate Court transferred, leaving the latter court 479 cases, and the Supreme Court 523 eases, which will, at one stroke, set this court back at least two and a half or three years, which is about the average time the Appellate Court is behind with its business, while the criminal, advanced and other eases having precedence would greatly increase the disparity, so that suitors in that court of certain classes would not have their eases advanced, nor would those whose causes should be transferred to this court be any better off, for there is a limit to human endurance to do the work, while those whose causes might be transferred from this court would be largely inconvenienced by the change, and to such
When the Constitution was adopted, the common-law writ of error was as well known as appeals, and they are recognized by the Constitution in all their common-law force. They could be abolished only as was done by the code of 1852, if at all, by the substitution in their place of some remedy of similar effect, and it is highly probable that they
Hence, if it could be abolished as a rule of procedure, it was certainly revived, and was in force in all its common-law vigor, and is a constitutional and prerogative writ of this court, to be exercised as the court shall see fit, so that even if the act of 1911 (Acts 1911 p. 201) could be held to be effective, the right to the writ of error remains.
It had its origin in the common law, and was adopted in the United States as a part of the common-law system. The common law by express statute is adopted in this State, with some qualifications, and unless abolished by statute the writ still remains as an available remedy.
If said act of 1911 could be upheld, the result would be the same in the reserve power of this court, and it is the only possible ground upon which it can be upheld; but it would not have been passed had that condition been regarded as possible. Wiscart v. D’Auchy (1796), 3 Dall. *320, 1 L. Ed. 619; Ex parte Thistleton (1877), 52 Cal. 220; Unknown Heirs, etc., v. Baker (1860), 23 Ill. 430; Willoughby v. George (1877), 4 Colo. 22.
It has been held that the writ cannot be abolished by the legislature, where the power to issue it is by the constitution vested in a court. Harrison v. Tradee (1871), 27 Ark 59; Martin v. Simpkins (1894), 20 Colo. 438, 38 Pac. 1092; Baier v. Schermerhorn (1897), 96 Wis. 372, 71 N. W. 600; Buttrick v. Roy (1888), 72 Wis. 164, 39 N. W. 345.
The right to a writ of error exists independently of any statutory or constitutional provisions, by force of the common law, in all eases where jurisdiction is exercised in inferior courts according to the course of the common law, and without further action by the legislature. Haines v. People (1880), 97 Ill. 161; Stebbins v. Anthony (1880), 5 Colo. 273;
Here, we have the writ provided for by the express language of the Constitution.
But it is sought to uphold said act of 1911, upon the ground of the right of the legislature to restrict or deny appeals. The question to my mind lies deeper. The legislature has given a right of appeal in a great variety of cases. These appeals are therefore impressed with the constitutional right, not of any suitor to have any particular court determine his ease, but the right to have the supreme law of the State declared as such, independently of any particular case, though it would have to be done in a case before the court, and that cannot be done, so long as the right to be heard is restricted to another court. It may be much abler in point of the personnel of its members, and they may be, and are presumed to be, imbued with as high motives and desires, but they cannot, in the nature of things, speak ex cathedra; that alone is the province of the Supreme Court, if it is to exist with its ancient prerogatives and jurisdiction under the Constitution. Neither can a coordinate court take its place or exercise its jurisdiction, and the effect of said act of 1911, what
It is sought by the able counsel for the State, while admitting that there can, in the nature of things, be but one Supreme Court, to make a distinction between jurisdiction and authority; that is, that authority to determine certain classes of eases finally, and without the power of revision as to the law, may be given to inferior courts, without affecting or taking away the jurisdiction of the Supreme Court. To my mind, the thing cannot be. The authority to determine a case is jurisdiction to determine it, and if authority to determine it finally is given, that is supreme jurisdiction as to that case, and to that extent supersedes the jurisdiction of the Supreme Court so effectually as to divide its jurisdiction, which is by the Constitution declared to be coextensive with the limits of the State.
It is also urged that the jurisdiction of the Supreme Court is still coextensive with the limits of the State. That is true by the very force of its creation, and its jurisdiction extends not only over the limits of the State, but by the force of its character and jurisdiction over the subjects of litigation, which are by the statute made appealable, to the extent, at least, of the reserve power in the court to declare the law of the commonwealth. But if this act can be upheld, which the writer would much like to see done, and has sought to do, out of regard to a coordinate branch of the government, where shall the line be drawn. Once the power of subtraction is conceded, no limit can be placed, and the evils that may follow cannot be forecast, so that it seems to me that safety can lie only in the denial of the power sought to be conferred by said act.
Dissenting Opinion
I cannot concur in the opinion of the majority of the court in this cause, and the importance of the statute, held by the majority to be unconstitutional, as well as the legal questions presented, impels me to state the reasons for dissenting, in an opinion of unusual length.
Inasmuch as the act of 1901 (Acts 1901 p. 565, §1337a et seq. Burns 1901) defining the jurisdiction of the Supreme and the Appellate Court, as amended in 1907 (Acts 1907 p. 237, §§1392, 1393 Burns 1908), is held valid, it will be instructive first to ascertain just what changes in the act of 1901, supra, are made by the act of 1911 (Acts 1911 p. 201). An examination of the acts discloses the fact that no change whatever is made in sections 1-6, 8-13, and 15-18 of the act of 1901, as amended in 1907, and the jurisdiction of the Supreme Court, as defined in said sections, is unchanged by the act in controversy.
By section seven of the act of 1907, supra, the Supreme Court was given jurisdiction in “proceedings to construe wills, in which no other relief is ashed.” (Our italics.) The act of 1911, supra, changes this section to read as follows: “All actions in which the construction of a will is involved.”
The effect of this change is to enlarge greatly the jurisdiction of the Supreme Court, and correspondingly to reduce that of the Appellate Court, which under the old act had jurisdiction of all proceedings involving the construction of wills, except in the very rare cases where no relief was asked except the construction of the instrument.
Section one, subdivision fourteen of the act of 1907, supra, gave the Supreme Court jurisdiction in appeals wherein a money judgment was rendered for more than $6,000. Under said act, jurisdiction in such eases is transferred to the Appellate Court. The number of such cases is comparatively small, and they are usually determined by common-law rules.
Section one, subdivision fifteen, of said act of 1911 gives the Supreme Court jurisdiction in “all cases involving the granting or refusal to grant injunctions,” and subdivision sixteen thereof confers on this court jurisdiction of “all cases for the specific performance of contracts.” Under the former act, the jurisdiction of cases designated in said sections was vested in the Appellate Court. Actions for injunction and specific performance are of purely equitable cognizance, and cover a wide and important field in our jurisprudence. The transfer from the Appellate Court to the Supreme Court of these two classes of cases, coupled with that of all cases where the title to or possession of real estate is involved, and also that of all cases where the construction of a will is involved, has the effect of giving to the Supreme Court jurisdiction of a great body of causes of equitable jurisdiction, and, on consideration, it must be conceded that these changes transfer from the Appellate Court to the Supreme Court the most important equity cases.
Section one, subdivision seventeen, of said act of 1911, gives the Supreme Court jurisdiction of all probate matters, including estates of decedents, infants, and persons of unsound mind, and all matters incidental thereto, and all suits pertaining thereto. Under the former act, such cases — and they are very numerous — were taken to the Appellate Court.
By the act of 1911, supra, the jurisdiction of the Supreme Court, in the following instances is left precisely as it formerly existed: In eases involving the validity of franchises and ordinances of municipal corporations; the constitution
The act of 1901 as amended in 1907, and the act of 1911, contained the same residuary clause conferring on the Appellate Court jurisdiction of all appealable cases except those in which the jurisdiction was, by the act, specifically vested in the Supreme Court. These clauses read as follows: “All appealable cases, other than those herein mentioned, shall be taken to the Appellate Court.” Acts 1907 p. 237; Acts 1911 p. 201. “All other appealable cases shall be taken to the Appellate Court.” Acts 1901 p. 565.
The act in controversy repeals that portion of the act of 1901 providing for the transfer of causes from the Appellate Court to the Supreme Court. This act, as construed by the Supreme Court, authorized the transfer of a case only when the opinion filed by the Appellate Court declares a rule in conflict with a ruling precedent of the Supreme Court, or when the opinion of the Appellate Court announces an erroneous rule on a new question of law. However grossly erroneous the decision of the Appellate Court may have been, when the record was taken into consideration, or however unjust to the litigant may have been the action of the Appellate Court, when tested by the pleadings, evidence and judgment of the trial court, no relief was granted to the losing party on a petition to transfer, unless the opinion of the Appellate Court asserted an erroneous doctrine, and then, only as an incident thereto. The sole purpose of the law was to enable the Supreme Court to control the statements of
Section 1405 Burns 1908, Acts 1901 p. 590, provided that whenever, in the opinion of the Supreme Court, there is a disparity between the number of the cases pending in the two courts, the Supreme Court may order a specified number of cases pending in the Appellate Court, to be transferred to the Supreme Court, and there determined in the same manner as if they had been appealed originally to it. §1405, supra. This section was neither repealed nor modified by the act under consideration. By §4 of said act of 1911 the jurisdiction of the Appellate Court is final, except in cases where two or more of the judges of the Appellate Court are of the opinion that a ruling precedent of the Supreme Court is erroneous, in which event such cases ai’e to be transferred to the Supreme Court.
By the act of 1901, as amended in 1907, the jurisdiction of the Appellate Court was final in such cases, unless transferred to the Supreme Court because two judges of either division of the Appellate Court concluded that a ruling precedent of the Supreme Court was erroneous, or unless transferred by the Supreme Court because of the erroneous declarations of law in Appellate Court opinions. Acts 1901 p. 565, §10, §1394 Burns 1908, Acts 1907 p. 237. This latter provision, found in §10, is repealed by said act of 1911.
As no one questions the act because it transfers from the
There is left, therefore, but two questions in this controversy. The act of 1911 takes from the Supreme Court jurisdiction of cases when there is a money judgment of $6,000, or over, and it takes from the Supreme Court jurisdiction of petitions to transfer conferred by the second clause of §10 of the act of 1901. In no other respect was the jurisdiction of the Supreme Court lessened by the act of 1911. If the General Assembly violated the Constitution by repealing a section of a statute enacted by the legislature in 1901, or if it violated the Constitution in taking from the Supreme Court jurisdiction in appeals from money judgments for $6,000, or over, then the act must fall; otherwise it must stand.
It will scarcely be contended that the legislature of 1911 did not have the power to repeal the act of 1901, supra, the only limitations on the power of the General Assembly to repeal former acts, of which I am aware, is the provision of the federal Constitution forbidding the states from enacting laws impairing the obligations of contracts, and the provision of our own Constitution preventing the decrease of judges salaries during the terms for which they may have been elected. Of course neither of these provisions has any application here. To admit that a legislature may enact an irrepealable law is to concede that it may alter the very Constitution from which it derives its authority, and eventually deprive succeeding General Assemblies of all power. Cooley, Const. Lim. (7th ed.) 174. That the legislature acted within the scope of its authority in repealing this enactment, is not debatable.
But in the majority opinion it is asserted that the cardinal point here involved is not what cases may be appealed, or to what courts appeals may be taken — not a question of personal or private right to be tied down solely to the rights
I cannot comprehend why a litigant, whose title to property depends on the correct application of a rule of law, can be constitutionally denied a review of his cause, and thereby be denied the protection of the law, and yet, the general public, with no pecuniary interest involved, can have the right to demand a review, and have the correct rule of law declared. No authority is cited to support the proposition, and I am unable to find any.
But aside from its novelty, this doctrine cannot possibly apply to any matter in issue here. If it be conceded that the Constitution guarantees to the general public the right to have the law of the State declared with absolute accuracy by the Supreme Court, this act cannot, even by conjecture, be declared to violate such right. The act does not hint even at affecting anything but the rights of litigants in the Appellate Court. In the classes of cases designated as appealable to the Appellate Court, it puts the stamp of finality on the litigation. The language of the statute (Acts 1911 p. 201, §4) is as follows: “The jurisdiction of the Appellate Court in all cases in which jurisdiction is hereby conferred upon said court shall be final.” The clause conferring jurisdiction (§1, subd. 21) is as follows: “All appealable eases, other than those herein mentioned [those appealable to the Supreme Court] shall be taken to the Appellate Court.” To constitute a case there must be a subject-matter presented to the court by a party. As this statute pertains only to appeals by persons — natural or artificial — I submit that the only question here involved is the power of the legislature to limit the rights of parties in appeals in certain classes of cases to a review thereof by the Appellate Court.
Our statutory appeal gives practically all the relief granted by the common-law writ of error and the original
The legislature of 1852 abolished the distinction between actions at law and suits in equity, and at the same time abolished the writ of error. 2 R. S. 1852 pp. 27, 158. It has never been restored. Prom that time until 1901 no other method of review was known to our law except by appeal. The limited scope of review, provided in the transfer act of 190.1, was wholly new to our law, purely of statutory creation, and died with the repeal of the statute in 1911. This leaves us where we were prior to 1901, with the appeal as the only method of review, unless the Constitution itself guarantees some additional remedy. It will scarcely be contended that such remedy can be found in the language of the Constitution. It provides simply that the “Supreme Court shall have jurisdiction * * * in appeals and writs of error, under such regulations and restrictions as may be prescribed by law.” Const. Art. 7, §4. No one has ever questioned the power of the legislature to abolish the writ of error. Even if it had not, in express terms, done so, our statutory appeal, comprehensive as it is, would probably have abolished it by implication. 2 Cyc. 517.
As only appeals and writs of error are mentioned in the Constitution, and the latter having been constitutionally abolished, the General Assembly may undoubtedly limit a litigant’s right to have his cause reviewed by resort to appeal. The act in controversy has so limited it.
It is suggested in the majority opinion, however, that the act of 1901 might have been held unconstitutional if it had not been for §10, which provided for a limited review by transfer, and, with that repealed, the classification of causes appealable to the Supreme Court would have been unconstitutional.
Classifications, to be valid, must not be merely arbitrary; they must have some reason for support, inherent in the
The transfer act of 1901, in actual practice, had proved unsatisfactory to the bar of the State, because it provided for no review o£ a ease on its merits.
At the fourteenth annual meeting of the State Bar Association of Indiana, held at Indianapolis in July, 1910, the committee on Judicial Administration and Remedial Procedure, by its chairman, the Hon. Wm. A. Ketcham, of the Indianapolis "bar, reported for adoption by the association, and presentation to the General Assembly of 1911, a resolution, seeking the amendment of the transfer act so as to provide, on petition to transfer, for a review of the record on its merits. After full debate, as shown by the report of the proceedings, the resolution was adopted. Proceedings Indiana Bar Association (1910) 190-207.
When the act was passed on March 3, 1911 (Acts 1911 p. 201) the first division of the Appellate Court, which had jurisdiction of appeals from the northern district, was deciding cases where the transcripts had been filed in the spring of 1908. Owing to the less volume of business in the southern district, the second division was not so far behind. Litigants in the northern district, with appeals pending in the Appellate Court, were required to wait from two to three years, after the filing of the transcripts, for a decision. The result was practically to nullify article 1, §12, of our Constitution, which requires that “justice shall be administered * * * speedily, and without delay.” The Supreme Court had the right to take over eases from the Appellate Court and decide them, but, owing to the fact that about two-fifths of the time of the judges of the Supreme Court was taken in considering petitions to transfer, it had not, at that time, taken over any Appellate Court cases since May, 1906. During the year preceding this enactment the Supreme Court had transferred from the Appellate Court
Three courses were open to the members of the legislature: (1) To ignore the mandate of the Constitution which guarantees a spcpdy administration of justice, and permit the delay of the law to continue its work of bankrupting litigants, or compelling them to accept the terms offered by their adversaries outside of court; (2) to create another appellate court, adding greatly to the burdens of the taxpayers of the State; (3) to repeal the transfer act, and thus enable the Supreme Court to devote the time thus saved to the consideration of eases of which the Appellate Court then had jurisdiction; to classify, by their nature, the cases of which each court shall have jurisdiction, thus preventing any substantial conflict of decisions, and to make the judgment of the Appellate Court, in causes of which it has jurisdiction, final and conclusive, by denying the litigants a right to appeal therefrom to the Supreme Court.
Our Constitution gives the Supreme Court no supervising control over the lower courts, as do the constitutions of many states, among which may be named Michigan, Wisconsin and Colorado; and even in such states it has been uniformly held that such control applies only to keeping inferior courts within the bounds of their jurisdiction. People, ex rel., v. Richmond (1891), 16 Colo. 274, 26 Pac. 929. The
We measure distances and surfaces with yard sticks and rod poles, and we weigh substances with balances; for these purposes we have standards on which all agree. But when it comes to laws — rules of action — whether written by legislatures or declared by courts, there is no fixed standard, nor can there be one by which to determine their wisdom. These rules change necessarily with the changes in habits, customs and industries of the people. Man was not endowed with absolute wisdom, and we cannot say of any single decision of a court, that it declares a rule that should stand forever unmodified.
This statute requires the Appellate Court to follow the decisions of the Supreme Court. The presumption is, that it will do so. If not, the legislature can abolish the court at any time. The judges of the Appellate Court take the same oath of office taken by the judges of this court. Surely bad faith will not be imputed to the judges of that court in advance. Hanly v. Sims (1911), 175 Ind. 345. The judges of the Appellate Court are elected by the voters of the entire State, just as the judges of the Supreme Court are selected. They receive the same compensation for their services. There is no reason why the people may not elect as judges of the Appellate Court men possessing learning and wisdom equal or superior to that possessed by judges of the Supreme Court.
The Appellate Court has been in existence for two decades. The opinions of the court, printed in the forty-five
Under this act the Appellate Court will have for its determination causes involving new questions of law for which no precedent may be found. Some of these questions might be decided differently by the Supreme. Court, but as it will not be called on for decisions in such cases, there will be but one line of decisions.
It may be suggested that the Appellate Court might decide that a matter involved a new question of law, when the Supreme Court, if permitted to decide, might hold that it was governed by a rule formerly declared by the Supreme Court, because it frequently happens that judges of equal learning and probity arrive at different conclusions. This may be conceded, and yet the question remains, Whose decision would be preferable ? It is just as likely as not that the Appellate Court, under such facts, would take the better view. As said before, there is no absolute standard by which matters of this character can be determined. The Supreme Court of the United States is the greatest judicial tribunal in the world. Yet it will not be claimed that its decisions are always consistent. At least, it frequently happens that four of its nine judges contend in dissenting opinions that the majority opinion is in conflict with another line of decisions. That great tribunal frequently acknowledges previous errors by overruling former decisions. And so it is with this court. In the case of Board, etc., v. Allman (1895), 142 Ind. 573, 39 L. R. A. 58, this court had before it for consideration for the thirtieth time the question of implied liability of counties for the negligence of their officers in erecting and keeping bridges in repair. The Supreme
The law is a practical science, ordained for practical people. Constitutions are made, laws enacted, and decisions of courts promulgated, to enable the people the better to enjoy life, liberty and the fruits of their industry. The purpose in establishing this court was not to create a school of jurisprudence — however desirable such a school might be — but was primarily to administer justice, as nearly as may be approximated, between suitors who properly presented their causes; and also to preserve the decisions for the use and guidance of others who might become similarly situated.
While the Supreme Court has the capacity to receive jurisdiction of all controversies, and the legislature may confer
Under our law, the State Board of Tax Commissioners fixes the valuation of railroad properties in the State, on which taxes are annually collected from the companies. Our Constitution requires a just valuation of all property for purposes of taxation. In fixing this valuation of railroad property, however grossly erroneous and unjust, the action of the state board is final, in the absence of fraud. Cleveland, etc., R. Co. v. Backus (1893), 133 Ind. 513, 18 L. R. A. 729. The aggrieved party in such case cannot even get a hearing in the circuit court. The q-wasi-judicial boards of various kinds annually determine the amounts of money to be taken from the people and corporations of the State, by assessments, etc., aggregating, probably, a larger amount than is determined by all the courts of the State. No doubt there is much error and injustice in the decisions of these various boards, but such decisions are not reviewable, sim
Much stress is laid on the portion of the act that takes from the Supreme Court jurisdiction to review money judgments in actions on contract, or in tort, because the Appellate Court is given final jurisdiction of causes that might involve “millions.” So far as the question of amount goes, a still greater objection might be urged against all boards of a judicial nature.
But the General Assembly was warranted in limiting the right of appeal in such cases, for the reason that actions of this character are largely governed by common-law or well-settled equity rules, and their determination usually requires only the application of well-settled principles of law. Another reason is, that in this class there are numerous cases, and it was necessary to draw the line of classification somewhere. Another strong reason is, that from the very beginning, probably for the reasons before stated, limitations were fixed on the right to appeal in that class of cases. The first Congress which convened after the adoption of the federal Constitution, prohibited appeals where the amount involved was less than $2,000. During the following century similar restrictions were applied in every American commonwealth. In recent years there has been a tendency to limit appeals classified by the nature of the action, rather than the amount involved. The new constitution of New York forbids a classification resting on the amount in controversy.
No court has ever decided, and probably none ever will, that a classification based on the amount in controversy, solely because the amount is small, is valid. Such holding would violate the equality of privileges clause of our Constitution. The suit involving $500 may be just as important to litigants in one action as one for $50,000 is to those in another. Whether this be so or not, both the letter and spirit of the Constitution would be violated by opening the doors
To say that the Supreme Court of Indiana, whose jurisdiction is coextensive with the State, will hear the causes of only those who have $6,000, or more, at stake, simply because enough money is not involved in other cases, would be abhorrent to the principles of any republican form of government, or even to those of any modern monarchy. Usually no reasons have been given by the courts for sustaining classifications based on the amount in controversy, except that the legislatures have so decreed; because it has always been recognized that the legislative department of the government was invested with the unqualified power to apportion the jurisdiction of the courts, except where expressly restrained by the organic law; and where legislatures act within the scope of their authority, courts may not inquire into the reasons which inspired the enactments.
But if such inquiry is permissible, the reasons are obvious and valid.
When the people, by the Constitution, create the highest court of review, and make no attempt to give it jurisdiction of any particular class of cases, and know that it is impossible for such court to determine all the controversies that will arise, they, by sheer necessity, invest the legislative department with the pow;er to exclude from the consideration of such court certain classes of cases; for they guarantee the speedy administration of justice. With the necessity of excluding some classes, the next problem is, What classes shall be so marked? We all agree that those should be excluded in which the inferior courts would be least likely to err, especially where these classes embrace numerous causes, and would greatly relieve the burden of the highest court. This is what this act has done, for in no class of cases is the law so well settled as in that of money judgments. Of course there are exceptions. In this class will necessarily be embraced some cases of peculiar importance,
It is true that the Supreme Court would not have had its burdens greatly increased by leaving with it cases involving judgments of over $6,000, but there would have still remained the danger of two lines of decisions.
In my judgment, the legislature did not violate our Constitution in taking from the Supreme Court, and giving to the Appellate Court, jurisdiction of appeals where the judgment was for an amount in excess of $6,000.
The question here is not a new one. The Indiana Constitution, so far as the Supreme Court is concerned, is modeled after the federal Constitution. In this particular, the constitutions of most of the states are the same. In a few instances the jurisdiction of the highest court is defined, in whole or in part. In such cases there can be no question. But in most states, as in our own, the constitution simply creates the court, and invests it with appellate jurisdiction, coextensive with the limits of the state, under such restrictions and regulations as the legislature may prescribe. As litigants are prone to exhaust every resource, this question has been presented to the Supreme Court of the United States, and of the several states with similar constitutions, and each time the legislative department has greatly restricted the right of- appeal to the highest court. The rule deduced from these decisions is as follows: Where the right to appeal from the judgment of an inferior court to the Supreme Court, or court of supreme authority called by some other name, is not expressly secured by the constitution, the legislature may, in its discretion, make the decision of the inferior court final. This rule has been recognized in its entirety in Indiana.
In the recent case of Amacher v. Johnson (1910), 174 Ind. 249, this court held as follows: “The Constitution of the State does not grant to any one the right either to a new trial or to an appeal to this court or any other court. Such a right depends upon the provisions of the statutes, and a new trial can be granted, or an appeal taken, only when authorized by statute, and then only in the manner, upon the conditions, and for the reasons named in the statute. Elliott, App. Proc. §§75-77; Lake Erie, etc., R. Co. v. Watkins (1902), 157 Ind. 600, and cases cited; Hughes v. Parker (1897), 148 Ind. 692, 695, and cases cited; Evansville, etc., R. Co. v. City of Terre Haute (1903), 161 Ind. 26, 35, 36, and eases cited; Brown v. Brown (1907), 168 Ind. 654, 655; State v. Rockwood (1902), 159 Ind. 94, 95, and cases cited; Kepler v. Rhinehart (1904), 162 Ind. 504, and cases cited; Randolph v. City of Indianapolis (1909), 172 Ind. 510; Smith v. Long (1909), 43 Ind. App. 668. See, also, Porter v. Industrial Printing Co. (1901), 26 Mont. 170, 183, 66 Pac. 839, 67 Pac. 67; State, ex rel., v. District Court, etc. (1903), 28 Mont. 123, 125, 126, 72 Pac. 412; Wright v. Mathews (1903), 28 Mont. 442, 444, 72 Pac. 820; State, ex rel., v. District Court, etc. (1903), 29 Mont. 176, 178, 74 Pac. 414; Vreeland v. Edens (1907), 35 Mont. 413, 421, 89 Pac. 735; Harrington v. Butte, etc., R. Co. (1908), 36 Mont. 478, 483, 93 Pac. 640; Saylor v. Duel (1908), 236 Ill. 429, 86 N. E. 119, 19 L. R. A. (N. S.) 377 and note.”
That this opinion is unqualifiedly sustained by a long line of harmonious decisions of this court, appears from a consideration of the following cases:
In the case of Sims v. Hines (1890), 121 Ind. 534, in
In the case of Randolph v. City of Indianapolis (1909), 172 Ind. 510, it was held that the judgment of the Superior Court of Marion County was final in a matter relating to assessments for street improvements. The court used this language in its opinion: “The statute before us provides that the report of appraisers appointed by the court ‘shall be final and conclusive’ upon all parties thereto. No appeal from such report or appraisement is specially authorized and none exists.”
In the case of Whittem v. State (1871), 36 Ind. 196, involving the right of appeal in a contempt case, this court said: “¥e are confronted at the threshold of this investigation with the questions of whether the appellant had a right of appeal, and whether this court has the jurisdiction to review the finding and judgment of the court below. The power and jurisdiction of the courts in this State are fixed and determined by the laws of their creation, and the right to appeal from an inferior court to this court is provided by the code.”
In the case of Hughes v. Parker (1897), 148 Ind. 692, the court used this language: “More than this, we may observe that the right to an appeal is and always has been statutory. Elliott, App. Proc. §75, and following, and note to §354. In the ease before us, as said in Sims v. Hines [1890], 121 Ind. 534, the legislature had ‘the authority to deny an appeal and
In the case of Rupert v. Martz (1888), 116 Ind. 72, this court held that “there are no vested rights in the law generally, nor in the legal remedies, and hence changes in them by the legislature do not fall within the constitutional inhibition, unless they are of such a character as materially to affect the obligation of contracts. Davis v. Rupe [1888], 114 Ind. 588; Bryson v. McCreary [1884], 102 Ind. 1, and cases there cited. The statute providing for a review of judgments is not a contract, nor can it be properly said that it enters into contracts made by contracting parties, either as a part of the contracts or as a part of the remedy. If such a statute confers a right at all, the right thus conferred is a mere statutory right, and having been conferred by the legislature it may be changed or taken away by the legislature.”
In the case of Brown v. Porter (1871), 37 Ind. 206, the court held the decision of the circuit court, sitting as a court of appeal from the commissioners’ court, in liquor license cases, was final, and the Supreme Court had no power to review. The opinion was by "Worden, C. J., in the course of which the following language was used: “In the case of Board, etc., v. Lease [1864], 22 Ind. 261, it was held, that, under this statute, no appeal lies to this court. We adhere to that decision. See, also, State v. Vierling [1870], 33 Ind. 99. The language of the statute is a little ambiguous, but we think it was the intention of the legislature that no appeal should lie to this court in such cases. Perhaps the reason was that the time of this court should not be consumed in the decision of controversies of such character.”
In the case of Brown v. Brown (1907), 168 Ind. 654, this court said: ‘‘The right of appeal is given by statute, or it does not exist.’’
In the ease of Evansville, etc., R. Co. v. City of Terre
The Appellate Court, in the ease of Bear v. Reese (1909), 44 Ind. App. 465, held that the judgment of a circuit court was final. The court said: “Our attention has not been called to any statute, nor do we know of any expressly or impliedly, authorizing this appeal. Without such a statute no right of appeal exists. Hughes v. Parker (1897), 148 Ind. 692; Pittsburgh, etc., R. Co. v. Gillespie (1902), 158 Ind. 454.”
The first General Assembly after the adoption of the Constitution of 1851, under its power to regulate and restrict appeals and writs of error, abolished the latter altogether, and provided strict regulations for appeals, by which every failure to assert a legal right at the proper time waived such right. Hornberger v. State (1854), 5 Ind. 300; Board, etc., v. Brown (1860), 14 Ind. 193.
In the case of State v. Rockwood (1902), 159 Ind. 94, the court, in passing on the right of the State to appeal in a contempt proceeding, used the following language: “The right of appeal exists only in those cases where it is given by statute. ‘The right to an appeal is and always has been statutory, and does not exist at common law. It is a remedy which the legislature may in its discretion grant or take away, and it may prescribe in what cases, and under what circumstances, and from what courts, appeals may be taken; and unless the statute expressly or by plain implication provides for an appeal from a judgment of a court of inferior jurisdiction, none can be taken.’ Sullivan v. Hang [1890], 82 Mich. 548, 46 N. W. 795, 10 L. R. A. 263; Lake Erie, etc., R. Co. v. Watkins [1902], 157 Ind. 600, 605.”
In'the case of Branson v. Studebaker (1892), 133 Ind. 147, in holding the act valid which conferred final jurisdiction on the Appellate Court in certain classes of eases, this court held as follows: ‘ ‘ The statute creating the Appellate Court does not apply to one class of litigants. * * * It applies to all litigants, and makes no attempt to classify by individuals or parties. The basis of the system of classification is the difference in classes of cases, and not in the situation of parties or persons. The statute is general and uniform, inasmuch as it makes a general classification, and operates uniformly upon all the classes included in the system adopted. * * * The provisions of the statute creating the Appellate Court, and authorizing the transfer to that court of cases appealed to this court prior to its enactment, are valid. There is no vested right in a remedy or in a tribunal.”
One of the leading cases on this subject is Lake Erie, etc., R. Co. v. Watkins (1902), 157 Ind. 600. This ease has not only been frequently approved in Indiana, but has been regarded as an authority by the courts of other states, and by textbook writers. The following language was used in the opinion: “That a party to a suit or action has no vested right to appeal or prosecute a writ of error from one court to another, in the absence of constitutional protection in that respect, is a well-settled proposition. Neither by instituting nor by defending an action or a suit does a party thereby acquire a vested right to a decision from a
The question here involved was presented to the Supreme Court of the United States in the ease of Clark v. Bazadone (1803), 1 Cranch *212, 2 L. Ed. 85. A writ of error issued from the Supreme Court to the general court for the territory northwest of the Ohio river, to reverse a judgment rendered in that court against Clarke. Mason, for plaintiff in error, contended that the Supreme Court possessed a general superintending power over all the other federal courts, resulting from the nature of a Supreme Court, independent of any express provisions of the Constitution or laws of the United States. The decision of the court was as follows: “The court quashed the writ of error, on the ground, that the act of Congress had not authorized an appeal or writ of error from the general court of the Northwestern Territory, and therefore, although from the manifest errors on the face of the record, they felt every disposition to support the writ of error, they were of opinion they could not take cognizance of the ease. ’ ’
In the ease of United States v. More (1805), 3 Cranch *159, *173, 3 L. Ed. 232, in an opinion by Marshall C. J., it was held: “This court, therefore, will only review those judgments of the circuit court of Columbia, a power to reexamine which, is expressly given by law.”
In the ease of Daniels v. Rock Island R. Co. (1865), 3 Wall. 250, 18 L. Ed. 224, the court said: “To come properly before us, the case must be within the appellate jurisdiction of this court. In order to create such jurisdiction in any case, two things must concur: The Constitution must give the capacity to take it, and an act of Congress must sup
The doctrine first announced by the Supreme Court in the case of Clark v. Bazadone, supra, more than a century ago, has been adhered to ever since by that court, in the scores of cases wherein the question was presented.
In the ease of The Paquete Habana (1900), 175 U. S. 677, 20 Sup. Ct. 290, 44 L. Ed. 320, the following language is used: “The judiciary act of the United States, for a century after the organization of the government under the Constitution, did impose pecuniary limits upon appellate jurisdiction. * * * But all this has been changed by the act of March 3, 1891, e. 517, establishing the circuit court of appeals, and creating a new and complete scheme of appellate jurisdiction, depending upon the nature of the different cases, rather than upon the pecuniary amount involved. 26 Stat. 826. By that act, as this court has declared, the entire appellate jurisdiction from the circuit and district court of the United States was distributed, ‘according to the scheme of the act,’ between this court and the circuit court of appeals thereby established, ‘by designating the classes of cases’ of which each of these courts was to have final jurisdiction. ’ ’
In the ease of Huguley Mfg. Co. v. Galeton Cotton Mills (1902), 184 U. S. 290, 22 Sup. Ct. 452, 46 L. Ed. 546, the court said: “The act of March 3, 1891, c. 517, 26 Stat. 826, provides in §6, that the circuit court of appeals shall have appellate jurisdiction to review judgments and decrees of the circuit courts in all cases in which a direct appeal is not
“It has been held in an uninterrupted series of decisions that this court exercises appellate jurisdiction only in accordance with the acts of Congress upon that subject.” Colorado Cent. Mining Co. v. Turck (1893), 150 U. S. 138, 14 Sup. Ct. 35, 37 L. Ed. 1030.
In the case of Sharpe v. Robertson (1849.), 5 Gratt. (Va.) 518, there is revealed more learning and careful research than in any other decision on this subject. The statute there under consideration created a special court of appeals, with jurisdiction to determine annually seventy cases pending for more than two years on the Supreme Court docket. The act was passed to provide relief for the Supreme Court, which was more than two years behind with its labors, and had on its docket more than five hundred cases. Peculiar interest attaches to the case, because it construed the Virginia constitution of 1829, which was similar to that of the United States and of Indiana; and especially because the convention that formulated that constitution was presided over by ex-President James Monroe, and ex-President James Madison and John Marshall, then chief justice of the Su
The Virginia constitution on this subject is practically the same as ours, and reads as follows:
“The judicial power shall be vested in a supreme court of appeals, in such superior courts as the legislature may from time to time ordain and establish, and the judges thereof, in the county courts and in justices of the peace. * * * The jurisdiction of these tribunals, and of the judges thereof, shall be regulated by law.” In the case of Sharpe v. Robertson, supra, the court, by Baldwin, J., said on page 603: “It was thus made the duty of the legislature to create a supreme court of appeals. * * * This duty being performed, the tribunal so constituted stood in the judicial system as the supreme court of appeals, contemplated by the constitution, with the capacity to receive such appropriate jurisdiction as the legislature thought proper, from time to time, to confer upon it. The regulation by law of the jurisdiction of the several courts of the commonwealth, embraces the distribution of the judicial power amongst them; in regard to which, there is no limitation, except such as arises out of the distinctive character of the tribunals, so far as designated by the constitution. The jurisdiction of the supreme court is to be appellate, or of that nature in a liberal*131 sense; that of the other courts may be original or appellate— the jurisdiction of all may be either civil or criminal. There can be no appeal from the supreme court to the superior courts, nor from the latter to the county courts; but, on the other hand, there is no constitutional right of appeal from the county to the superior courts, nor from the latter to the supreme court. The legislative department has authority to terminate litigation where it pleases, but cannot protract it beyond the supreme court of appeals. The jurisdiction of this court is constitutionally supreme, not because it is final, but because it cannot be otherwise. The jurisdiction of other courts may be rendered final by legislative permission, during’ which they have a kind of supremacy, but not in a constitutional sense. Thus the right of appeal from the county courts, or the superior courts, may be withheld or restrained, at the discretion of the legislature. But in the nature of things, no appeal can be allowed from the supreme court of appeals to any other tribunal. The jurisdiction of the supreme court of appeals is therefore, of necessity, final, but the extent of it is a matter dependent wholly upon the legislative will. It may be made broad or narrow, as the discretion of the legislature shall dictate. It may be made to embrace the whole judicial appellate power, or a small portion of it only. It may be confined to civil controversies, or to actions at common law, or to suits in equity, or to actions or suits of a particular description. It may exclude civil controversies altogether, and be restricted to criminal causes. It may, from time to time, be extended or withheld, or withdrawn, as to the legislative mind may seem most expedient. The policy which led to the constitutional requirement of a supreme court of appeals, is sufficiently obvious, and needs no exposition. But it was a policy which could not be carried out by the fundamental law itself, without undertaking to regulate thereby the jurisdiction of the several courts; and to have done this by a law so permanent in its nature, would have precluded such alterations in the dis*132 tribution of the judicial power, as experience should suggest, and the changing wants and interests of the country at future periods require. Indeed it would have been incompatible with the unlimited power given to the legislature to establish superior courts, whether of civil or criminal, common-law or equitable, original or appellate, jurisdiction, and to modify, change or abolish them at pleasure. It was therefore deemed best to ordain the establishment of a supreme court of appeals, and to leave its practical usefulness unreservedly to the care and wisdom of the legislative department. * * * The judicial power is exhausted in a cause when there has been a final and irreversible adjudication of it by a court of competent jurisdiction, whether original or appellate. * * * The supremacy of this court is to be found, not in the extent of its jurisdiction, or the amount of its business, but in the paramount force and authority of its adjudications — a force acting directly in controlling, without being controlled by, other tribunals — an authority operating indirectly, from the respect and deference due to the highest tribunal known to the constitution and the laws. The influence of its authority extends beyond the range of its power. It is not limited by its actual, but is coextensive with its potential jurisdiction — with its capacity to receive from the laws unlimited control over all cases decided by the subordinate tribunals. The conformity of the other courts to its principles is not a slavish submission to the lash of power, but a willing and cheerful obedience yielded from a sense of propriety and duty. The authority of the supreme court, as distinguished from its power, is not the less obligatory upon a subordinate tribunal, because the same has not yet been subjected, or only partly subjected to its jurisdiction. The principles of the civil and criminal law are in many respects the same, and the same questions may arise in the administration of both. The general court is still the court of last resort in criminal cases; and yet can it be supposed that in the adjudication of a criminal cause, that*133 tribunal would not be governed by a principle applicable to it, which liad been settled by decisions of the supreme court of appeals? Or does any one seriously believe that the latter would be bound to conform to the decisions of the former, because in the present state of the law the same are irreversible ? It would be difficult for those indulging such a fancy to stop short of allowing the like influence to irreversible decisions, not only of the circuit courts and the county courts, but even of justices of the peace. If the foregoing views be correct, in what respect does the law in question invade the constitutional supremacy of this court? It provides for the trial, annually, by the special court of appeals thereby constituted, of the seventy eldest causes ready for hearing, which shall have been depending more than two years in the branch of the supreme court held at Richmond. The effect of this law is, by a uniform regulation, to withdraw from this court a portion of its business, and send it to the determination of another forum. Its operation is, in the first place, to reduce the docket within a reasonable compass, and afterwards to keep it in the same condition. It affects the jurisdiction and not the supremacy of the court. In truth, the difficulty of this question, it seems to me, has arisen from confounding the jurisdiction of the court with its supremacy, which are far from being identical; the former is derived from the laws, the latter from the constitution ; the former is temporary and mutable, the latter permanent and immutable; the former is the field for the exercise of judicial power, the latter is in itself the exercise of that power. The moment that it is ascertained that this court continues supreme, it follows, from the same principles, that the tribunal organized by the law in question is neither supreme nor coordinate. It is true, that its adjudications are final and irreversible; but not more so than those of the general court in criminal causes; not more so than many of those of the circuit courts, of the county courts, and of justices of the peace. The right of appeal from that tri*134 bunal to this does not exist to-day, but the legislature may allow it, to any extent, to-morrow. On the other hand, it is beyond the legislative power to authorize appeals from this supreme to that special court. * * * The special court is a subordinate tribunal, as much so as any other superior court which the legislative department may, in its discretion, from time to time establish; and is as much bound to defer to the authoritative decisions of the supreme court of appeals. ’ ’
In the same case it is said by Allen, J.: “In ordaining that there should be a supreme court of appeals, the constitution did not designate what portion of judicial power it should exercise. All judicial power was vested in it, and the county courts, and such superior courts as might be established, and the judges thereof. But no ■ attempt was made to define their jurisdiction. * * * The construction of the constitution is not to be entered upon in a spirit of distrust towards the legislative department. For if that be felt and acted upon, our system of government would become impracticable. There is no external force which can be brought to bear so as to compel the legislature to discharge any of its functions. By abstaining to elect a governor, we may be left without an executive; by refusing to pass laws, or repealing those in existence regulating the jurisdiction of the courts and judges, the judicial power would be in abeyance. Such extreme suppositions lead to no practical result. But to remove all doubt as to the discretion intended to be confided to the legislature, it is expressly declared ‘that the jurisdiction of these tribunals, and the judges thereof shall be regulated by law. ’ In the language of Judge Marshall, as recorded in the debates of the convention, page 505: ‘ The article leaves the whole subject open to the legislature. They may limit or abridge the jurisdiction of all the courts as they please.’ And again: ‘The whole subject of jurisdiction is submitted, absolutely and without qualification, to the power of the legislature. ’ In the exercise of this discretion,
The same principle was decided in the same way in the case of Floyd v. Quinn (1902), 24 R. I. 147, 52 Atl. 880, in an opinion reviewing the American authorities. The court said: “A constitution does not usually deal with details. * * * Hence nothing is determined by our constitution, beyond the vesting of complete judicial power in the courts and the requirement that there shall be one supreme court. Taken in the order of a convenient review, the defendant’s first proposition is, that the constitution, by creating a supreme court, thereby conferred upon that court exclusive jurisdiction, ex vi termini, to grant new trials, which is the power brought in question in this case, and that this power cannot be taken away or diminished. We do not question that in establishing a supreme court there is something in a name. The provision that there shall be a supreme court clearly implies that it is not to be subordinate to any other court or tribunal, and that it is to exercise the highest of the judicial functions. * * * It is to be a court of last resort. It does not follow, however, that all cases can go to that court, by appeal or petition, and that there can be no final decision except by that court, if a party desires it. This is apparent, both from principle and practice. There can be no claim that the vesting of jurisdiction in the supreme court, in our constitution, is more imperative than that in the federal Constitution. * * * As to the federal Constitution, Hamilton said in the Federalist, No. LXXXI, interpreting this clause: ‘The power of constituting inferior courts is evidently calculated to obviate the necessity of having recourse to the supreme court in every case of
In the case of People, ex rel., v. Richmond (1891), 16 Colo. 274, 26 Pac. 929, the supreme court of Colorado, in a long and exhaustive opinion, held valid an act creating a “court of appeals” which provided that no appeal to, or writ of error from, the supreme court, should lie to review the final judgment of such court of appeals in actions where the value of the property in controversy did not exceed $2,500. Session Laws of Colo. 1891 p. 118. This act, unlike our Appellate Court act, did not require the court of appeals to follow the decisions of the supreme court. The opinion explains and distinguishes the former decisions of the court in the cases of In re Court of Appeals (1886), 9 Colo. 623, 21 Pac. 471, and In re Court of Appeals (1890), 15 Colo. 578, 26 Pac. 214.
The constitution of Colorado (Art. 6, §§1, 2), with reference to this question, is as follows: “Section 1. The judicial power of the state * * * shall be vested in a supreme court, district courts, county courts, justices of the peace, and such other courts as may be created by law. Section 2. The supreme court, except as otherwise provided in this constitution, shall have appellate jurisdiction only, which shall be coextensive with the state, and shall have a general superintending control over all inferior courts, under such regulations and limitations as may be prescribed by law. ’ ’ (Our italics.)
The court held that the act did not create a court of co
The constitution of Illinois provides that the supreme court shall have jurisdiction in four classes of cases, viz.: criminal cases, and those in which a franchise, a freehold or the validity of the statute is involved. Consequently, in the case of Berkenfield v. People (1901), 191 Ill. 272, 61 N. E. 96, which was a criminal case, the court decided that the supreme court could not be deprived of jurisdiction thereof. But in other cases the supreme court of Illinois has repeatedly held that the right to appeal is purely statutory. In the case of Saylor v. Duel (1908), 236 Ill. 429, 86 N. E. 119, 19 L. R. A. (N. S.) 377, the court said: “In this state the right of appeal in any ease is purely statutory, with the possible exception of certain classes of cases enumerated in article 6, §2, of the constitution of 1870, in which the right of appeal from the appellate court to the supreme court in certain enumerated cases seem to be guaranteed by the constitution.” To the same effect is the case of Chicago, etc., R. Co. v. Fisher (1892), 141 Ill. 614, 31 N. E. 406; Young v. Stearns (1878), 91 Ill. 221.
In the case of Crovens v. Atlantic Ave. R. Co. (1896), 150 N. Y. 225, 44 N. E. 968, it was held that a statute making the judgment of an inferior appellate court final in personal injury cases, was valid. The court said: “In determining the right of appeal we must consider that it is not a natural or inherent right, but rests on the statute alone, and may be taken away by the legislature unless conferred by the organic law of the state. The jurisdiction of the court of appeals is designated and created by law, and it has no other. ’ ’
In the case of Hewlett v. Elmer (1886), 103 N. Y. 156, 8 N. E. 387, it was held that “the jurisdiction of the court of appeals’is designated and created by law. It has no other.”
In the case of City of Portland v. Gaston (1901), 38 Or. 533, 63 Pac. 1051, the supreme court of that state held that “the legislature has the power to define in what eases, and under what circumstances, and in what manner, an appeal may be taken to” that court.
In the ease of Western American Co. v. St. Ann Co. (1900), 22 Wash. 158, 60 Pac. 158, it was held by the supreme court of that state, that while their constitution in express terms provided that that court should have appellate jurisdiction in all cases, this provision was not self-executing, and in a class of cases where the legislature had made no provision for appeal to that court, none could be entertained.
In the case of Fleshman v. McWhorter (1903), 54 W. Va. 161, 46 S. E. 116, it was held that “it is within the power of the legislature to prescribe the eases in which, and the courts to which, parties shall be entitled to bring a cause for review. * * * The law gives one trial on every cause of action. As to some, the judgments and decrees of the trial court may be reviewed; as to others, they may not. There is a remedy for every wrong, but in some cases it is more ample, and may be pursued farther than in others.”
In the ease of Dismukes v. Stokes (1867), 41 Miss. 430, in an elaborate opinion, the court said: “When the legislature has passed laws regulating- the mode of proceeding and limiting the eases and the courts in which the right may be exercised, the rules prescribed must be followed, because they are clearly such as the legislature has power to enact. Nothing appears to be more clearly within the legislative power over matters pertaining to public policy, than the question, In what cases and to what courts shall a party be entitled to an appeal or writ of error”?
In the case of Sullivan v. Haug (1890), 82 Mich. 548, 46 N. W. 795, 10 L. R. A. 263, quoted with approval by this
In a great number of cases this question has been presented in Wisconsin, which has a clause in her constitution granting the supreme court superintending power over inferior courts. In the case of State, ex rel., v. Chittenden (1906), 127 Wis. 468, 107 N. W. 500, the supreme court said on page 509: ‘ ‘ Counsel fail to distinguish between appellate jurisdiction and the right of appeal. The former only is granted by the constitution, the latter is a mere legislative creation. The legislature is supreme in the matter. It may grant the right of appeal from some inferior courts and not from others, or from courts only, or from courts and tribunals exercising quasi-judicial authority as well; or may grant the right in some cases and not in others, and having granted it take it away.” To the same effect is the case of Puffer v. Welch (1910), 141 Wis. 304, 124 N. W. 406.
In the ease of Mau v. Stoner (1905), 14 Wyo. 183, 83 Pac. 218, it was held as follows: “It is well settled that in the absence of a direct constitutional requirement the right of appeal does not exist unless expressly conferred by statute. * * * Unless it is guaranteed as a matter of right in the constitution, the legislature has power to pass laws not only regulating the mode of proceeding, but limiting the eases in which the right may be exercised. * * * Hence it may be said that in both England and the United States the
The constitution of South Dakota is like that of Michigan. In the leading case of McClain v. Williams (1897), 10 S. Dak. 332, 73 N. W. 72, 43 L. R. A. 287, it was held that “none of the provisions of the constitution prohibit the legislature from limiting’ appeals to a defined class of eases, and prescribing at what stage and in what court ordinary litigagation shall end. The right to an appeal * * * depends upon the statute, when not specially granted by the constitution.” (Our italics.)
The same principle is declared by the courts, in the following cases: City of Chattanooga v. Keith (1905), 115 Tenn. 588, 94 S. W. 62, 5 Am. and Eng. Ann. Cas. 859, with annotations on page 860; Blum v. Brownstone Bros. (1875), 50 Cal. 293; General Custer Min. Co. v. Van Camp (1884), 2 Idaho 40, 3 Pac. 22; City of Paducah v. Ragsdale (1906), 122 Ky. 425, 92 S. W. 13; Hager v. Adams (1886), 70 Iowa 746, 30 N. W. 36; Snoddy v. Pettis County (1870), 45 Mo. 361; Hanika v. State (1910), 87 Neb. 845, 128 N. W. 526; Atwood v. Whipple (1891), 48 Ohio St. 308, 28 N. E. 674; Commonwealth, ex rel., v. Hipple (1871), 69 Pa. St. 9; United States, ex rel., v. O’Neal (1897), App. Cas. (D.C.) 205, 244; Golding v. Jennings (1874), 1 Utah 135; City of Minneapolis v. Wilkin (1883), 30 Minn. 140, 14 N. W. 581; Anderson v. Brown (1855), 6 Fla. 299; Arnsperger v. Crawford (1905), 101 Md. 247, 61 Atl. 413, 70 L. R. A. 497; Leavenworth Coal Co. v. Barber (1891), 47 Kan. 29, 27 Pac. 114. In New Jersey the jurisdiction of all constitutional courts is established as it existed prior to the date of the present constitution. Newark, etc., R. Co. v. Kelly (1895), 57 N. J. L. 655, 32 Atl. 223.
Special express constitutional provisions are found in the organic laws of Arkansas, and some other states.
The authorities on this question might be multiplied almost
The eminent counsel who have appeared in this cause and argued against the constitutionality of the act have not cited any authority in conflict with the rule declared in the foregoing cases, except in occasional instances, where the right of appeal to the court of last resort is expressly given by constitutional provision.
Textbook authorities declare the same rule.
“It should be remembered * * * that appeals are exclusively of statutory origin, and that no appeal to either court (Supreme or Appellate) can be maintained except as given by statute.’’ Ewbank’s Manual §58.
“It is laid down by the authorities that the right of appeal is purely a statutory one and this is undoubtedly the general rule. A party who brings an action does not by such an act acquire a vested right to a decision from a particular tribunal.” Elliott, App. Proc. §75.
The majority opinion in this case, squarely overrules more than a score of Supreme Court decisions. Fewer Appellate Court cases have been overruled by this court in a year. It establishes a principle first contended for before the United States Supreme Court in 1803, and by that court then repudiated, and repudiated ever since, when presented, by that court, and by the highest courts of every American commonwealth having a constitution similar to our own. It holds for naught the opinions of Marshall and Hamilton, and other illustrious persons who formulated the provisions in constitutions on which ours is modeled. All this is done because it is believed that the supremacy, or dignity, of this court, is, or may be, assailed by the legislative department of the government. For that reason, also, it leaves the docket of the Appellate Court burdened with probably eight hundred cases, and the clause in our constitution, guaranteeing a speedy administration of justice, an unredeemed pledge.
In my opinion, this act was not intended to, and does not, affect the supremacy, rank or dignity of this court. It only transfers to the jurisdiction of the Appellate Court judgments for money in excess of $6,000, and repeals the supervisory transfer law of 1901, modeled after the certiorari act of Congress of 1891.
In no just sense can the Appellate Court be said, by this act, to be made one of coordinate jurisdiction with the Supreme Court. It cannot overrule the opinions of the Supreme Court. It must follow them. It cannot determine the bounds of its own jurisdiction. This court does that. It can decide no constitutional question. Wills, injunctions, titles to real estate, the validity of statutes, ordinances and franchises, and, in fact, all the most important classes of causes are embraced in the exclusive jurisdiction of this court, and, no doubt, enough is given to keep it busy. If not, the statute gives this court the right to transfer to it for decision all classes of cases appealed to the Appellate Court.
If the decisions of the Appellate Court do not follow those of this court, it may at any time be abolished by the legislature, and the volumes containing its published opinions, owned by the State, and kept in the Supreme Court library, may be destroyed. No such power over this court exists.
In my opinion, the act in question is not only valid, but was designed to afford assistance in a situation calling for immediate relief, and it is unfortunate that such relief must be postponed.
Concurrence in Part
While not agreeing wholly with all that is said therein by way of argument and illustration, and collateral to the primary question discussed, yet I heartily concur in the conclusion reached by Morris, J., in his very clear and exhaustive opinion, that the act in question, approved March 3, 1911 (Acts 1911 p. 201), is a valid exercise of legislative power. At the same time the wisdom of the act seems to me to be exceedingly doubtful.
Prior to the amendment of article 7, §1, of our state Constitution, March 14, 1881, this court was so overwhelmed by the accumulation of cases before it for decision that the necessary delay in deciding eases worked great hardship on litigants. Under the provisions of the Constitution before the amendment just mentioned, the legislature was without power to create any tribunal to relieve the Supreme Court of any part of its great burden of appellate jurisdiction, and we know judicially that the amendment in question was proposed and adopted primarily to remedy that particular difficulty. State, ex rel., v. Noble (1889), 118 Ind. 350, 364, 4 L. R. A. 101, 10 Am. St. 143. Under the augmented power granted the General Assembly by the people, by this particular amendment, the Appellate Court was originally created. The amendment to the Constitution was made, and the Appellate Court created, all 'with a definite purpose in the minds of the sovereign people of the State of taking from this court a portion of its then-existing appellate jurisdiction, for its relief and the consequent speeding of the administration of justice. This amendment did not impair or threaten the supremacy of this court, neither did the action of the General Assembly, by virtue of it, in creating the Appellate Court, and vesting it with a part of the jurisdiction which had before been given into the keeping of this court; but, on the contrary, it has been uniformly held by
My doubt of the wisdom of the act arises from the fact that under existing statutes this same result could have been brought about in a more efficacious way. Under the provisions of section twelve of the act of 1901 (Acts 1901 p. 565, §1396 Burns 1908), defining the jurisdiction of the Appellate Court, that court had, and still has, the power to equalize by transfer any undue disparity in the number of cases pending on the docket of the two divisions of the court, and by §1405 Burns 1908, Acts 1901 p. 590, the Supreme Court has the power to equalize the disparity in the number pending on the dockets of the Appellate Court and its own court by a transfer of cases from that court to this. These provisions left in the courts the power of equalizing, and with them the knowledge on which to act was always present and certain. But with the wisdom of the act we cannot deal. That is a legislative question. If as a result of said act, if enforced, a greater number of, and more difficult, cases should fall to the jurisdiction of this court, and a greater delay necessarily result in the decision of those cases of greater
