The effect of the majority opinion is that there are two separate and distinct circuit courts in existence in Poinsett County having separate and distinct jurisdictions to be exercised at the will and pleasure of the circuit judge who may happen to preside in these respective circuit courts. If the opinion of this court in State v. Martin, 60 Ark. 343, wherein the letter "a" was construed to mean "many" was thought to be novel, then I wonder and ponder what the bench and bar will think when we assert that: "The circuit court shall have jurisdiction in all civil and criminal cases, the exclusive jurisdiction of which may not be vested in some other court provided for by this Constitution." Section 11, article 7, of the Constitution of 1874, also provided: "each circuit to be made up of contiguous counties," etc. Section 13, article 7; "also a judge of the circuit court shall be a citizen of the United States," etc. Section 16, article 7, Constitution, provided also: "The judges of the circuit court shall be elected," etc. Section 17, *Page 281 article 7, of the Constitution also: "whenever the office of judge of the circuit court of any county," etc. Section 21, article 7, Constitution also: "the qualified electors of each circuit shall elect a prosecuting attorney," etc. Section 27, article 7, Constitution also: "the circuit court shall have jurisdiction," etc. Section 27, article 7, Constitution also: "appeals from all judgments of the county courts or courts of common pleas when established may be taken to the circuit court under such restriction and regulation as may be prescribed by law." Section 33, article 7, Constitution also: "the judge of the county court shall be the judge of the court of probate and * * * have jurisdiction in matters * * * as is now vested in the circuit court," etc. Section 34, article 7 also: "that in all cases of allowances made for or against counties, cities or towns an appeal shall be to the circuit court of the county," etc. Section 51, article 7 also: "that in all cases of contests for any county, township or municipal office an appeal shall lie * * * to the circuit court," etc. Section 52, article 7, Constitution, means two or more circuit courts instead of "the circuit court," as appears from a casual reading of the Constitution? It occurs to me that but one construction can be placed upon the language employed in the Constitution as hereinbefore quoted. "The circuit court" does not and cannot be consistently or logically construed to mean two or more circuit courts. The view that the Legislature may create two or more circuit courts to operate in the respective counties of the State is abortive of constitutional mandate. The mere fact that this court held in State v. Martin, supra, that two or more circuit judges might be provided by the General Assembly to preside in or over a certain circuit court in the State is neither decisive nor persuasive of the question here discussed. The indefinite article "a" which precedes "judge" in the Constitution of 1874 was there determined to be no definite limitation upon the legislative branch of the State government in providing additional judges to preside over the respective circuit courts of the State. Whether the opinion in Martin v. State, supra, be sound or unsound, logical or illogical, *Page 282 is not now open for discussion, but the indefinite extension of the doctrine therein announced should be condemned in no uncertain terms. Certainly, no member of the Constitutional Convention of 1874 ever conceived or dreamed that in 1934 this court would hold, in effect, that "the circuit court," as used so many, many times in article 7 of the Constitution of 1874, would be construed to mean more than one circuit court. Just how this construction of the Constitution may be made to fit into other provisions of the instrument is not readily conceivable. How appeals from the county courts, probate courts, justice of the peace courts and municipal courts may be affected is thrown into utter confusion. Will such appeal be prosecuted to the first or second division of these circuit courts? Will prohibition, quo warranto, mandamus, injunctions and other remedial writs be returnable to the first or second division of these newly created courts? These questions can not be answered by saying that the Legislature may determine and settle them. Primarily, and until now, jurisdiction of subject-matter has been conferred by the Constitution, and, when so conferred, the Legislature is without power to change or modify it. The circuit court jurisdiction is conferred by 11, article 7, of the Constitution of 1874, but the jurisdiction of this newly created circuit court is nowhere mentioned or referred to in the Constitution. Just which of these circuit courts will be said to have and hold the great residium of jurisdiction conferred upon the circuit court by constitutional mandate is not pointed out by the majority opinion. Martin v. State, supra, does not impair the reasoning here set out. There this court expressly said: "The act creates no new office and confers no new jurisdiction, nor does it in any manner change or take away any jurisdiction already conferred by the Constitution." In contradiction of the doctrine thus announced, the majority is now holding that a new office is created; that a new jurisdiction is conferred which changes and takes away the jurisdiction conferred by the Constitution of 1874. The legislative act creating a second judge for the first judicial district is of no *Page 283 greater importance than that which creates the judge for the sixth judicial district, which was construed in Martin v. State, supra, and I cannot conceive the importance or necessity for this apparent distinction.
It certainly and definitely appears from article 7 of the Constitution of 1874 that but one circuit court was created for Poinsett County, but by subsequent acts of the Legislature, as construed in Martin v. State, supra, it may be presided over by more than one judge. This construction not only meets the exigencies of prevailing conditions, but fits into constitutional mandate. If there is but one circuit court in Poinsett County, which is presided over by one or more circuit judges, then it inevitably follows that Judge Killough erred in refusing to exercise jurisdiction over the subject-matter of the suit pending in the Poinsett Circuit Court while presiding there on March 5, 1934. In the response filed here by Judge Killough, he asserts that the suit pending in the Poinsett Circuit Court and here under consideration was pending in the first division of the Poinsett Circuit Court and that he was presiding over the second division of the Poinsett Circuit Court on March 5, 1934, therefore; he had no jurisdiction of the case. Upon this response, we should direct the issuance of the peremptory writ of mandamus.
This court expressly held in Gilbert v. Shaver,94 Ark. 234, 120 S.W. 833, that jurisdiction of subject-matter was purely a question of law, and the chancellor, having decided he had no jurisdiction, should be required to exercise jurisdiction by mandamus in this court. The rule as stated by us in Gilbert v. Shaver, supra, is not only supported by the great weight of authority on the subject, but I assert, without fear of contradiction, that no authority can be found holding otherwise. See Merrill on Mandamus, 36 and 203. Wood on Mandamus, p. 20.
The majority endeavor to avoid the jurisdictional question here presented by saying: "First, the refusal of the plaintiff (petitioner here) to agree that the cause be transferred from the first to the second division of the circuit court" estops petitioner invoking the jurisdiction of this court. It has ever been the settled law *Page 284 in this State that jurisdiction of subject-matter can not be conferred by agreement of the parties; therefore, any agreement of the parties would have been vain, useless and futile.
Moreover, no agreement of the parties was necessary because Judge Killough, then presiding, had jurisdiction of the subject-matter of petitioner's suit then pending in the Poinsett Circuit Court. Thus it appears that this "agreement gesture" is without plausibility.
Next, the majority say that "we judicially know that the circuit court will sit in first division on May 14, 1934, etc." Therefore, the issuance of the writ would have no useful purpose and because thereof should be denied. This assertion is palpably erroneous. On the same assumption the writ should never be granted. On the same assumption the writ in Gilbert v. Shaver, supra, should have been denied, because Judge Shaver might have died, voluntarily retired, or been removed from office before the writ could become effective. The test is and should be, what are the facts at the time the application for the writ is made? In the instant case, when petitioner's application for the writ was made, Judge Killough was asserting his lack of jurisdiction in the premises and, when we judicially determine that he was in error in this assertion, the writ should follow as a matter of right.
The peremptory writ of mandamus should be awarded in the instant case commanding and directing the presiding circuit judge of Poinsett County to assume and exercise jurisdiction over the subject-matter of petitioner's suit pending in the Poinsett County Circuit Court.