dissenting.
Courts are reluctant to decide constitutional questions and they should be passed on only when raised and when the necessity arises. 12 Tex.Jur.2d, Constitutional Law, § 14, p. 362. I am convinced there is no necessity to pass on the constitutional question here involved. A statute answers the question. Further, if the constitutional question is to be reached, I have concluded the majority opinion, which ignores the rules of constitutional construction and uses artificial and simplistic reasoning, is wrong, dead wrong. For these reasons, I dissent.
The relator Faulder was convicted of capital murder and received the death penalty. On appeal his conviction was reversed in a 6-3 decision because his extrajudicial confession, which was admitted into evidence, was obtained in violation of his Fifth Amendment, United States Constitution, rights, and in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Michigan v. Mosley, 423 U.S. 96, *51896 S.Ct. 321, 46 L.Ed.2d 313 (1975), and cases decided by this court. See also Article 38.22, V.A.C.C.P.
The State, by and through its Criminal District Attorney of Gregg County, the Honorable Odis R. Hill, has filed a motion to stay this court’s mandate of reversal in order that the State may obtain review of this court’s decision in the United States Supreme Court pursuant to 28 U.S.C., § 1257(3). Respondent Hill is candid. He makes no pretenses, and by pleading and oral argument makes clear he wants to appeal the decision of this court. Relator Faulder has filed an application for a writ of prohibition to prevent Hill from seeking such review. Relator relies upon Article V, § 26 of the Texas Constitution and Article 44.01, V.A.C.C.P., which prohibit appeal by the State in criminal actions or cases.
Germane to this discussion is the official oath prescribed by the Texas Constitution (Article XVI, § 1), which the Respondent Hill and the members of this court have taken. It prescribes in part:
“I ... will to the best of my ability preserve, protect, and defend the Constitution and laws of the United States and of this State; . .. .” (Emphasis supplied.)
The remedy sought by the relator is a writ of prohibition. Under the 1977 amendment to Article V, § 5 of the Texas Constitution this court, subject to such regulations as may be prescribed by law, has, “regarding criminal law matters,” the power to issue writs of prohibition and the same is not limited to a writ necessary to protect this court’s jurisdiction or enforce this court’s judgment. Thomas v. Stevenson, 561 S.W.2d 845 (Tex.Cr.App.1978) (Concurring Opinion).
In Vance v. Clawson, 465 S.W.2d 164, 168 (Tex.Cr.App.1971), this court stated:
“It has been said that ‘a writ of prohibition is that process by which a superior court prevents inferior courts, tribunals, officers, or persons from usurping or exercising jurisdiction with which they have not been vested.’ 73 C.J.S. Prohibition § 1, P- 9.”
It seems that if the Respondent Hill in his official capacity as the Criminal District Attorney of Gregg County is seeking, as he claims, an appeal or review of this court’s decision in the Faulder case, and if such action is beyond the jurisdiction or power of his office, then a writ of prohibition would be available to prevent such a usurpation of authority.
Next to be considered is whether the action the respondent Hill seeks to take— review of this court’s judgment by writ of certiorari in the United States Supreme Court — is an appeal in a criminal action or case. There can be no question but that the offense of capital murder, V.T.C.A., Penal Code, § 19.03, for which Relator Faulder was tried and convicted and assessed the death penalty, is a penal offense. And it is further noted his appeal was to this court, which is the only court in the state with appellate jurisdiction in all criminal cases. Article V, § 5, Texas Constitution. Thus, there is no quarrel that we are dealing with a criminal action or case.1 Is, however, the action sought to be taken by Respondent Hill an “appeal”?
Long prior to the adoption of the 1876 Constitution the Supreme Court of the Republic of Texas in Republic v. Smith, Dallam, 407, 408, 409, defined an appeal as “a complaint to a superior court of injustice done by an inferior one.” See also Cottrell v. Board of County Commissioners of Paulding County, Ohio, 24 Ohio N.P., N.S. 281.
Certiorari is a remedy well known to common law as a writ issued from a superi- or court directing an inferior court to transmit to it the record of some proceedings for review. Zamora v. Garza, 117 S.W.2d 165 (Tex.Civ.App.—San Antonio, 1938); City of San Angelo v. Boehme Bakery, 144 Tex. *519281, 190 S.W.2d 67 (1945); Ashworth v. Hatcher, 98 W.Va. 323, 128 S.E. 93 (1924). In Shapleigh Hardware v. Brumfield, 159 Miss. 175, 130 So. 98 (1930), it was held that certiorari is an appellate proceeding for reexamination of the action of an inferior tribunal. And it has been said appeal and certiorari are analogous proceedings. Curry v. Terrell, 1 White & W., Civ. case, Ct.App., § 239.2
And in White v. State, 543 S.W.2d 366, 368 (Tex.Cr.App.1976), the plurality opinion stated in part “... it seems clear that a petition for certiorari, like a writ of error in Texas practice, is an ‘appeal,’ albeit a discretionary one. Hart v. State, supra (13 Tex.App. 555, Galveston Term 1883) .. . Durham v. United States, 401 U.S. 481, fn. at 483, 91 S.Ct. 858, 860, 28 L.Ed.2d 200 (1971). To say that review by certiorari does not constitute an appeal is to make a distinction without substance, since such a review necessarily involves an attempt to persuade a superior court to correct the error of the lower court.”
The Respondent Hill admits the action he seeks to take is an appeal, and I do not understand the majority to question that the action the respondent seeks to take is an appeal.3
There does not appear to be any question that what the Respondent Hill seeks to do is to appeal a criminal action or case.
Article 44.01, Y.A.C.C.P. (1965), found in Chapter 44 of the Code of Criminal Procedure, entitled “Appeal and Writ of Error,” provides:
“The State shall have no right of appeal in criminal actions.”
This article has remained unchanged at least since Article 836 of the 1879 Code of Criminal Procedure which was enacted by the 16th Legislature on February 21, 1879 and became effective July 24, 1879. Said Article became Article 871 in the 1895 Code of Criminal Procedure, Article 893 in the 1911 Code of Criminal Procedure and Article 812 in the 1925 Code of Criminal Procedure. Thus, the voters of this state, through their elected representatives, have for over a hundred years repeatedly re-affirmed by statute independent of any constitutional provision a broad, firm public policy that the State shall have no right to appeal in criminal actions.
The language in the statute is definite, direct, simple and unambiguous, eliminating any need for judicial construction. The statute legally blocks Respondent Hill’s efforts to seek review in the United States Supreme Court by writ of certiorari in this court’s decision in the Faulder case. For this reason and for this reason alone the writ of prohibition should issue. This should end the matter.
The majority, however, ignores the precedent that courts should avoid deciding constitutional questions unless the necessity arises. It rushes to judgment and decides the constitutional question with only a mention and absolutely no consideration of Article 44.01, V.A.C.C.P., in the decision making process. Surely the statute must be considered in some way before the majority agrees that the application for writ of prohibition should be denied. The bench and the bar, and if you please, the public, are at least entitled to this much.
Since the 5-4 majority decides the question on the basis of the state Constitution without regard to the statute, this necessitates showing why that decision, independent of the statute, is even in error.
Article V, § 26, Texas Constitution, provides:
“The State shall have no right of appeal in criminal cases.”
The Interpretive Commentary to said constitutional provision provides a brief history of the right of the State to appeal in criminal cases. It states in part:
*520“Although the present Texas constitution denies the state any appeal whatever, an examination of earlier constitutions reveals that there has been no consistent regard for the defendant in this respect. The Constitution of the Republic of Mexico charged the General Congress with the duty of prescribing the procedure of the courts in criminal matters. The Constitution of 1836 of the Republic of Texas merely provided that the common law should be the rule of decision in criminal cases. The first state constitution left the matter of criminal procedure to the legislature, and the legislature in providing for criminal appeals did not confer a right of appeal upon the state until 1856.
“Although the Constitution of 1845 provided that a defendant could not be again put on trial for the same offense after a verdict of not guilty, the provision adopted in 1856 permitted the state to appeal from a sustained exception of the defendant to the indictment or information and from a sustained motion of the defendant in arrest of judgment.
“The provisions of the Constitution of 1845 were incorporated into the Constitution of 1861. The statute of 1856, permitting a limited appeal by the state, ceased to be operative upon the adoption of the Constitution of 1869, following which the prosecution was afforded a right to appeal apparently equal to that accorded the defendant in felony cases. This development was of brief duration, however, inasmuch as the present restriction came into being with the adoption of the Constitution of 1876.” (Emphasis supplied.)
The constitutional prohibition represents a broad and firm public policy that has endured for over one hundred years with due observance from its public officials in accordance with their constitutional oath except for the aberration that is White v. State, supra. It is stated in definite, plain, simple and unambiguous language and is easily understandable. It needs no judicial construction. It has long been considered as prohibiting any and all kinds of appeal by the State in criminal cases. Citing the constitutional provision 5 Tex.Jur.2d, Appeal and Error — Criminal, § 16, p. 37, states, “The State has no right of appeal in any criminal case.” (Emphasis supplied.) And the article “Should the State Have an Appeal in Criminal Cases?” 1 S.W.L.J. 152 (1947) viewed the constitutional provision as denying “the state any appeal whatsoever.” (Emphasis supplied.) See also Interpretive Commentary, supra.
The Constitution is the fundamental law containing the principles on which the state government rests, regulating the three branches of government, and directing how each department shall exercise its powers. Texas National Guard Armory Board v. McCraw, 132 Tex. 613, 126 S.W.2d 627 (1939). The provisions of the Constitution, unless the contrary appears therefrom, are mandatory and not merely directory. Ex parte Anderson, 46 Tex.Cr.R. 372, 81 S.W. 973 (1904). The courts and prosecutors must be obedient to its commands; Ex parte Anderson, supra, and neither executive officers nor the judiciary can lawfully act beyond the constitutional limitations. Traveler’s Ins. Co. v. Marshall, 124 Tex. 45, 76 S.W.2d 1007 (1934).
Turing to the rules of constitutional construction, it is observed that constitutional provisions which are not ambiguous and are not open to more than one construction or interpretation must be given their full effect without regard to the consequences. Cramer v. Sheppard, 140 Tex. 271, 167 S.W.2d 147 (1942); Rawlins v. Drake, 291 S.W.2d 349 (Tex.Civ.App.—Dallas 1956); Bexar County Hospital District v. Crosby, 320 S.W.2d 247, 253 (Tex.Civ.App.—San Antonio 1958); Keller v. State, 87 S.W. 669 (Tex.Cr.App.1905); Koy v. Schneider, 110 Tex. 369, 218 S.W. 479, 221 S.W. 880 (1920). And constitutional provisions will not be construed to be ambiguous and contradictory if such construction is avoidable. Holman v. Broadway Improvement Co., 300 S.W. 15 (Tex.Com.App.1927). And when the signification of a phrase or clause is plainly discoverable from the words thereof, there is no reason to resort to rules of construction and effect should be given to *521the meaning thus ascertained. Words will be considered to have been used in their natural sense and ordinary significance unless the context indicates the contrary. 12 Tex.Jur.2d, Constitutional Law, § 14, pp. 362-363. The language used must be presumed to have been carefully selected and the words used are to be understood as people generally understood at the time of the adoption of the Constitution. Cramer v. Sheppard, 140 Tex. 271, 167 S.W.2d 147 (1942); City of Amarillo v. Love, 356 S.W.2d 325 (Tex.Civ.App.— Amarillo 1962), err. ref. n.r.e.; Leander Ind. Sch. Dist. v. Cedar Park Water Sup. Corp., 479 S.W.2d 908 (Tex.1972). See Markowsky et al. v. Newman et al., 134 Tex. 440, 136 S.W.2d 808 (1940). And if a term appears to have received a judicial construction prior to its use in a constitutional provision, the inference is that it bears this signification. 12 Tex.Jur.2d, Constitutional Law, § 14, p. 363; Carr v. Tucker, 42 Tex. 330 (1875).4
It seems clear to this writer that the meaning of said § 26 of Article V is plainly discoverable from the words themselves and there is no reason to resort to rules of construction to ascertain the meaning.5 It should be given effect as written for when the meaning of the language selected by the framers of a constitution is clear, this controls the court in interpreting it. Ex parte Myer, 84 Tex.Cr. 288, 207 S.W. 100 (1918).
It is also noted that whenever the language employed in a constitution is prohibitory, such as in § 26 of Article V, it is intended to be a positive and unequivocal negation. Ex parte Anderson, 46 Tex.Cr.R. 372, 81 S.W. 973 (1904).
Strong as a conclusion may be drawn from the plain and unambiguous language of a constitutional provision, it may still derive support from other sources. It is an historical fact that for over a hundred years courts and lawyers, law professors and the public have viewed and construed the prohibition against the State’s right to appeal in a criminal case as being absolute and as applying to any type of appeal. Thus where there has been acquiescence in a practical construction for a long period of time this should be a safe guide as to the proper interpretation. See and cf. Walker v. Baker, 145 Tex. 121, 196 S.W.2d 324, 327 (1946).6 General public acceptance of and acquiescence in a certain construction of the Constitution extending over a long period of time gives rise to the doctrine that affords to such acceptance persuasiveness akin to precedent. Shepherd v. San Jacinto Junior College Dist., 363 S.W.2d 742 (Tex. 1962).7
*522“A constitution should receive a consistent and uniform interpretation, so that it is not to be taken to mean one thing at one time and another thing at another time when the circumstances may have so changed as perhaps to make a different rule in the case seem desirable.” 12 Tex.Jur.2d, Constitutional Law, § 17, p. 365.
The primary rule of interpreting and construing the Constitution is to ascertain the intention of the people in adopting it and give effect to that intention. Cox v. Robison, 105 Tex. 426, 150 S.W. 1149 (1912); Collingsworth County v. Allred, 120 Tex. 473, 40 S.W.2d 13 (1931); Ferguson v. Wilcox, 119 Tex. 280, 28 S.W.2d 526 (1930); Farrar v. Bd. of Trustees of Emp. Retirement System of Tex., 150 Tex. 572, 243 S.W.2d 688 (1951). The meaning of a Constitution is fixed when it is adopted and is not different at any subsequent time. Cox v. Robison, supra; Jones v. Ross, 141 Tex. 415, 173 S.W.2d 1022 (1943). And in interpreting the Constitution courts may look to the conditions existing at the time of adoption, general spirit of times, and prevailing sentiment. Mumme v. Marrs, 120 Tex. 383, 40 S.W.2d 31 (1931).
The courts, in construing the Constitution, must give effect to the intent of the people in adopting it as found in the instrument itself, and it will be presumed that the language thereof has been employed with sufficient precision to convey such intent, and where such presumption prevails nothing remains except to enforce such intent. Holley v. State, 14 Tex.App. 505 (1883).
Turning to 1876 we find that the people of Texas had only recently gone through a War among the States, witnessed the occupation of the state by federal troops, endured a Reconstruction Era with its carpetbaggers, and had briefly experimented with the unlimited right of appeal by the State in criminal cases. By constitutionally prohibiting the State the right of appeal in criminal cases, it is obvious they were disenchanted with their experiment. Is it reasonable to assume under the circumstances of the times that the framers of the Constitution and then the voters intended to prevent prosecutors from appealing within their own state judicial system and yet somehow to permit these same prosecutors the right to appeal the same state criminal cases to the United States Supreme Court? It is not reasonable, in fact it is absolutely unreasonable, to so conclude, given the spirit of the times. And certainly a constitutional provision must be reasonably con-
strued in a manner not repugnant to common sense. First National Bank v. City of Port Arthur, 35 S.W .2d 258 (Tex.Civ.App.—Beaumont 1931). Further, my research has failed to reveal that it was ever the practice of state prosecutors at the time to appeal state criminal cases to the United States Supreme Court even when the State had the unlimited right of appeal.
Without any claim that the constitutional prohibition is ambiguous, without resort to any rules of construction, without consideration of the history of the times and without any citation of authority or precedent, the majority simply states that since the constitutional prohibition, page 104, is found in that portion of the Constitution entitled “Judicial Department” that the prohibition on appeals by the State is a restriction only within the state judicial system. What the majority overlooks is that in every earlier state constitution there was a division thereof entitled “Judicial Department” and the mere fact that the prohibition was placed for the first time under “Judicial Department” in the 1876 Constitution cannot be said, without more, to be an adoption of a public policy of a limited prohibition of the right of the State to appeal in criminal cases. In order to reach the desired result, the majority has by its own edict amended the Constitution by adding to § 26 of Article V the words “within the state judicial system.” I find no justification for such action.8
It is not for courts to undertake to amend or rewrite the Constitution by judicial deci*523sion. Rawlins v. Drake, 291 S.W.2d 349,350 (Tex.Civ.App. — Dallas 1956). Only the people can do that. Moore v. Edna Eospt. Disk, 449 S.W.2d 508 (Tex.Civ.App. — Corpus Christi 1969), ref. n.r.e. Those called upon to construe the Constitution are not authorized to read into the Constitution language not contained therein or by construing the Constitution differently from its plain meaning. Cramer v. Sheppard, 140 Tex. 271, 167 S.W.2d 147 (1942). Constitutional provisions may not be bent to meet a beneficent purpose however noble the design may be. Ex parte Smythe, 56 Tex. Cr.R. 375, 120 S.W. 200 (1909). Courts are not to be concerned with the wisdom or lack of wisdom of a constitutional provision and need not exert their ingenuity to find reasons to thwart the intention of the people as clearly expressed in the Constitution. Carpenter v. Sheppard, 135 Tex. 413, 145 S.W.2d 562 (1940).9
Even if it can be seriously argued that the prohibition in § 26 of Article V of the Texas Constitution is limited to the state judicial system, Respondent Hill still faces the hurdle of Article 44.01, V.A.C.C.P. Even if he can successfully bypass that barrier without violating his official oath, then by what authority does he have the right to “appeal” to the United States Supreme Court? There is no constitutional 'or statutory authority permitting such an “appeal,” and at common law appeals by the State were unknown. See United States v. Sanges, 144 U.S. 310, 312, 12 S.Ct. 609, 36 L.Ed. 445 (1892).
If the majority today establishes the right of the State to appeal criminal cases to the United States Supreme Court, then it will have opened Pandora’s box. Every state trial court order granting a motion to suppress evidence will raise the possibility of an “appeal” direct to the United States Supreme Court for 28 U.S.C. § 1257(3), authorizes reviews of final judgments or decrees rendered by the highest court of a state in which a decision could be had. While prohibition against appealing would still apply within the state judicial system, the wraps would be off as far as applying to the United States Supreme Court from such orders as the orders would be rendered by the highest court of the state in which a decision could be had. Speedy trials will not be speedy and the finality of judgment in a criminal case will again be lengthened.
For the reasons stated, I dissent.
ROBERTS, J., joins in this dissent except for the discussion of Article 44.01, V.A.C. C.P.. In Ex parte Wolters, 64 Tex.Cr.R. 238, 144 S.W. 531 (1911), this court quoting from Taylor v. Goodrich, 25 Tex.Civ.App. 109, 40 S.W. 515, 524 (1897), stated:
“A ‘criminal case’ is defined to be an action, suit, or cause instituted to secure a conviction and punishment for crime, or to punish an infraction of the criminal law.”
. In Gould v. Klabunde, 63 N.E.2d 258, 262, 326 Ill.App. 643 (1945), it was held an “appeal” is a review by a superior tribunal, the method of which review may be called either “certiorari” or “appeal.”
. Judge Dally in a brief concurring opinion is, however, unwilling to concede that “appeal” as used in Article V, § 26 of the State Constitution includes review by writ of certiorari, but regrettably he does not elaborate.
. As earlier noted, the word “appeal” had received a judicial construction prior to the adoption of the 1876 Constitution. In Republic of Texas v. Smith, Dallam 407 (1840), the Supreme Court of the Republic defined an appeal as “a complaint to a superior court of injustice done by an inferior one.”
. If the drafters of a new Constitution sought to prohibit the State’s right of appeal in criminal cases, how could plainer language be found than is now contained in Article V, § 26 of the present Constitution? “There is probably no clear or more unambiguous section than this in the entire Texas Constitution.” Braden, “The Constitution of the State of Texas: An annotated and Comparative Analysis,” Vol. I, p. 474 (Article V, § 26).
. In Walker v. Baker, supra, it was noted that where for 100 years the State Senate did not construe the State Constitution as conferring on it power to convene at will to consider Governor’s recess appointment gives weight to the construction that the Constitution does not authorize.
.In Newman v. State, 187 S.W.2d 559 (Tex. Cr.App.1945), this court in a case involving a confession wrote:
“By these decisions, there is no escape from the conclusion that the Supreme Court of the United States has potential jurisdiction in all State cases where it is claimed by the accused that the conviction was based upon his involuntary confession.
“Such being true, the position this Court occupies in relation to such cases is both unique and difficult — unique, in that by the Constitution and the laws of this State, Const. Art. 5, sec. 5, Vernon’s Ann.St.; Art. 812, C.C.P., we are the court of last resort in criminal cases. If we reach a conclusion that the confession was involuntary, such conclusion is binding upon the State and Society, for under our Constitution, Art. 5, sec. 26, the State is expressly denied the right of appeal in a criminal case and is therefore barred from seeking a review of that conclusion by the Supreme Court. On the other hand, if we conclude that the confession was voluntary, such conclusion is in no sense final, binding the accused only until reviewed by the Supreme Court of the United States.”
. This is a classical example of raw judicial power — pure muscle.
. It is true that appellants in this court apply almost weekly by applications for writ of cer-tiorari to the United States Supreme Court after a decision of this court, and there is no question of their right to do so. It may seem unfair that the State cannot do so likewise. Our Constitution and laws must be changed only, however, in the manner prescribed by law and not by judicial whim. As a legislator, I would vote to give the citizens an opportunity to change the Constitution in this regard (review by the United States Supreme Court). Today we must vote as judges and not as legislators, however. We must follow the Constitution and the laws as written. And further, we must avoid a grandstand play designed to win popular support today for a position opposed by a constitutional provision adopted over a century ago or any other time.