On Petition for Rehearing.
Goss, J.In a petition for rehearing counsel have questioned in many particulars the opinion filed. We adhere to our decision. Counsel vigorously attack the constitutionality of the trial de novo provisions of § 7985, authorizing a retrial in district court on the matters involved in the distribution of the proceeds of the estate, concerning which the existence of a common-law marriage constituted the main issue. While the matter is but incidental to the exercise of probate jurisdiction, yet as § 7985 confers on appeal on the district court the duty of trying de novo probate matters mentioned in such section, its constitutionality is challenged, and if such statutory right of appeal is invalid the judgment of the county court would be conclusive and should be affirmed, as jurisdiction to try de novo would not be conferred by the appeal upon the district court, because of the unconstitutionality of the appeal statute. If the statute is unconstitutional the district court trial as had was a nullity. The constitutional provisions are recited in the main opinion. Do the provisions of § 111 of the Constitution, granting to the county court “exclusive original jurisdiction in probate and testamentary matters (enumerated), and such other probate jurisdiction as may be conferred by law,” prohibit retrial in district court on new evidence, — a trial de novo in all particulars ? We answer emphatically that it does not. A trial de novo is but the exercise of the appellate jurisdiction conferred by law and authorized under § 103 of the constitution, defined in practice by § 7985; The legislature -has thereby seen fit to declare the manner of exercise of the appellate jurisdiction with which the district court on appeal is clothed to be that of trying the cause anew, instead of limiting the appeal to a review of á record already made. Such appellate court .at the conclusion of such trial enters its judgment under § 7986, directing the form and substance of the judgment to be entered in the county court, the court of ex-*505elusive original jurisdiction, and in so doing but exercises its appellate jurisdiction in tbe manner prescribed by law.
Counsel cite as against the constitutionality of the statute mentioned a decision of this court on the Newman law, Christianson v. Farmers Warehouse Asso. 5 N. D. 438, 32 L.R.A. 730, 67 N. W. 300. This case cannot be construed as authority for counsel’s position. It fully supports our holding. We quote therefrom the following; found bn pages 446, 447, of the opinion: “We find no definition of appellate jurisdiction so limited that it will not permit the appellate court to review the facts as well as the law if the legislature so required. As we have’seen the supreme court of the territory of Dakota at the time of and prior to the adoption of our constitution was expressly required to review facts in certain cases under § 5237 of Compiled Laws. We have no authority for saying that the constitutional convention intended to curtail that jurisdiction. Nor have we any warrant for saying that such convention used the words 'appellate jurisdiction’ in § 86 of the Constitution in any other or different sense from that given to the same words in § 103, defining the jurisdiction of the district courts. And when in the latter section it is declared that the district courts shall have 'such appellate jurisdiction as may be conferred by law,’ it is not meant that the legislature may define appellate jurisdiction and make it mean one thing in one case and a different thing in another case. It is only meant that it shall have appellate jurisdiction in such cases as the law’may declare. It is undisputed that the appellate jurisdiction in such courts may be exercised by a strict trial de novo upon new pleadings and entirely new evidence, but it is entirely competent— and it is almost universally done — for the legislature to declare that in certain cases involving only small amounts the appellate jurisdiction of those courts shall be exercised only in the correction of errors, and such provisions do not affect the question of appellate jurisdiction, but of appellate procedure. In Story on the Constitution § 1761, that learned authority in discussing the appellate jurisdiction of the Federal Supreme Court, says: 'In the first place it may not be without use to ascertain what is here meant by appellate jurisdiction and what is the mode in which it may be exercised. The essential criterion of appellate jurisdiction is that it revises and corrects the proceedings in a cause already instituted, and does not create that cause. In reference to *506judicial tribunals and appellate jurisdiction therefore necessarily implies that the subject-matter has been already instituted in and acted upon by some other court whose judgment or proceedings are to be revised. This appellate jurisdiction may be exercised in a variety of •forms, and indeed, in any form which the legislature may choose to •prescribe; but still the substance must exist before the form can be .applied to it.’ We know of no clearer statement of the points under 'discussion than is contained in Judge Story’s language. Appellate jurisdiction cannot create a cause; it must be first created and adjudicated by another judicial tribunal. Those facts existing, the appellate court may exercise its jurisdiction in any form the legislature may ■prescribe. The legislature may require the appellate court to review the facts and render final judgment. If in so doing it exercise some .of the functions of a court of original jurisdiction, we answer that there is neither constitutional nor legal reason why it should not.”
The celebrated and pioneer case on the Federal Constitution is that of Marbury v. Madison, 1 Cranch, 131, 2 L. ed. 160. It was there ¡sought to compel the issuance of an office commission by mandamus commenced as an original proceeding in the Supreme Court, based •upon the authority of a statute assuming to so grant to the Supreme 'Court original jurisdiction. The Federal Constitution, while not in -express terms denying the Supreme Court original jurisdiction in such matters, did expressly declare the original and appellate jurisdiction •of that tribunal; and by inference denying it original jurisdiction excepting when granted by the Federal Constitution in express terms. This implied negative against original jurisdiction was given force •and held controlling and as rendering the statute granting such excess of original jurisdiction unconstitutional. The following language of Chief Justice Marshall is instructive: “When an instrument organizing fundamentally a judicial system divides it into one supreme, and ■so many inferior courts as the legislature may ordain and establish; then enumerates its powers and proceeds so far to distribute them as to define the jurisdiction of the supreme court by declaring the cases in which it shall take original jurisdiction, and that in others it shall take appellate jurisdiction, the plain import of the words seems to be, that in one class of cases its jurisdiction is original, and not appellate; in the other it is appellate, and not original. ... To enable this *507■court, then, to issue a mandamus, it must be shown to be an exercise of appellate jurisdiction, or to be necessary to enable them to exercise appellate jurisdiction. It has been stated at the bar that the appellate jurisdiction may be exercised in a variety of forms, and that if it be the will of the legislature that a mandamus should be used for that purpose, •that will must be obeyed. This is true, yet the jurisdiction must be appellate, not original. It is the essential criterion of appellate jurisdiction, that it revises and corrects the proceedings in a cause already instituted, and does not create that cause. Although, therefore, a mandamus may be directed to courts, yet to issue such a writ to an officer for the delivery of a paper is in effect the same as to sustain an original action for that paper, and, therefore, seems not to belong to appellate, "but to original jurisdiction. Neither is it necessary in such a case as this, to enable the court to exercise its appellate jurisdiction.”
From the foregoing portions which we have italicized it is plain that fhe legislative right to prescribe the manner of exercise of the appellate jurisdiction is there recognized; and the distinction drawn not on the manner of its exercise, the appellate procedure used, but rather in denial of the right of an appellate court to be used as a court wherein causes of action may be originally litigated. This case is consonant with the opinion of our court in Christianson v. Farmers’ Warehouse Asso.; and also Cavanaugh v. Wright, 2 Nev. 166, a case on all fours with the one at bar. We quote therefrom: “ ‘appellate jurisdiction’ in Its most limited and technical sense means jurisdiction to retry and determine something that has already been tried in some other tribunal. If we were to give the phrase its most technical and limited meaning, we might rather hold that the framers of the Constitution intended thereby to require that all appeals from justices should be tried de novo, than that none should be so tried. But we are not disposed to give it so narrow and technical a construction. We think as used in the Constitution the phrase ‘appellate jurisdiction’ was intended to be used in a broad and •comprehensive sense. It was intended to confer jurisdiction upon the district courts to hear cases on appeal either in the strictest sense, which would require a trial de novo, or to review them as law cases are reviewed at common law. We think the language quoted from the eighth section clearly confers on the legislature the power to regulate the manner of appeals to the district court. It might require in one class of *508cases that upon appeal the trial should be de novo and in other cases a simple review of the proceedings of the court below. The legislature has required the trial in the district court to be de novo in all cases, and we think it had the right to do so. The law is not in conflict with any constitutional provision. We see nothing in the fourth section of article 6 of the Constitution which confers appellate jurisdiction on this court [district court], which militates against the views we have herein expressed.” The case of State ex rel. Pleasure v. McClellan, 25 Pla. 88, 5 So. 600, may be considered as contrary to our conclusion unless the exception mentioned in the last paragraph thereof be borne in mind. That court, after holding that the purpose and effect of a trial de novo on appeal was the invoking and use of original as distinguished from appellate jurisdiction, shows the opinion to have been written more with reference to appellate procedure than to jurisdiction. We quote from the concluding paragraph: “The jurisdiction to try a proceeding-relating to the forcible entry or unlawful detainer of lands is a law jurisdiction ; and at law, barring the legislation as to trials de novo\, such a thing as the introduction of new evidence has not been permitted on either a writ of error, or on our law appeal. The same is true of appeals in equity. State courts have no admiralty jurisdiction, and the peculiar practice in that branch of jurisprudence cannot be invoked as in point.” It is also evident that this holding is influenced by the peculiar phraseology of the Florida Constitution in defining jurisdiction, original and appellate, of its various courts. See State ex rel. Wallace v. Baker, 19 Fla. 19, decided prior to State ex rel. Pleasure v. McClellan, in which the court uses the following language: “In many of the states where the jurisdiction of the courts is not so sharply defined, it is provided that a new trial may be had in the circuit court on appeal from judgments of inferior courts. It was so in this state under the former Constitution, which gave circuit courts original jurisdiction of matters without regard to the amount involved; and, having such original jurisdiction, it could try do novo causes brought before it by means of the statutory appeals from justice’s courts, in the same manner as causes commenced by summons. But as the present Constitution forbids the circuit courts to take original jurisdiction of matters at law involving less than $100 in value or amount, the legislature cannot confer such jurisdiction by indirect means.” The same may be said of State ex rel. *509Chestnut v. King, 20 Ela. 399. That trial de novo may be considered essential to an exercise of appellate jurisdiction, see Dodds v. Duncan, 12 Lea, 731. Idaho, under constitutional provisions interpreted by its supreme court as classifying jurisdiction in the probate and district courts identically as is done under the constitutional provisions of our state under consideration, has fully adjudicated the very question before us, as will be found in Re McVay, 14 Idaho, 56, 93 Pac. 28; Christensen’s Estate, 15 Idaho, 692, 99 Pac. 829; Re Sharp, 15 Idaho, 120, 18 L.R.A. (N.S.) 886—898, 96 Pac. 563; Idaho Trust Co. v. Miller, 16 Idaho, 308, 102 Pac. 360; and McGregor v. Jensen, 18 Idaho, 320, 109 Pac. 729. The first two cases are on all fours with the case at bar, and contain lengthy discussions of appellate and original jurisdiction, the opinion in the McYay Case being written after rehearing had on this identical question. We quote therefrom: “An examination of §§ 20 and 21 of art. 5 of the Constitution discloses at once the fact that the framers of that instrument saw fit to classify ‘matters of probate, settlement of estates of deceased persons, and appointment of guardians’, as separate, distinct; and aside from ‘cases at law and in equity’ over which they gave the district court ‘original jurisdiction.’ It will .also be seen from § 20 that ‘in all cases, both at law and in equity,’ from which they have clearly distinguished ‘matters of probate, settlement of estates of deceased persons, and appointment of guardians,’ the district court has ‘original jurisdiction,’ and that in all other matters which the legislature might provide for being heard in district courts the jurisdiction should be solely ‘appellate.’ The words ‘original jurisdiction’ and ‘appellate jurisdiction,’ as employed in § 20, are used in the clearest and most unequivocal contradistinction to each other. By § 21 the probate courts are given the sole and exclusive ‘original jurisdiction’ in all matters of probate. . . . Under § 20, art. 5, of the ■Constitution, the legislature is the sole and exclusive judge as to the extent and scope of the ‘appellate jurisdiction’ that they will confer upon district courts. ... It must be assumed that the legislature, when it passed the act . . . providing for a trial de novo in the district court on appeal from the probate court in probate matters, was acting within the purview of the Constitution, and did not intend to go any further than to provide for the exercise of the ‘appellate jurisdiction’ of the district court.” This act granting such appeal reads: “The *510appeal may be taken either upon questions of [law] or both law and fact-If taken upon questions of law alone the district court may review any such questions which sufficiently appear upon the face of the record or proceeding without the aid of a bill of exception, but no bill of exception shall be allowed or granted in probate court in probate matters. If the appeal be upon questions of both law and fact the trial in the-district court shall be de novoCommenting thereon that court says “If, however, the cause is not reversed on questions of law, then the. same questions of fact as were tried in the probate court will be retried in the district court as other trials in said court are conducted. Witnesses may be called and may testify the same as in the trial of' any other cause. In other words, this statute under the Constitution grants to the district court appellate jurisdiction to retry only the same issues of law and fact as were heard and determined by the probate-court. Whatever judgment may be entered in the district court is to be certified back to the probate court for execution in accordance therewith.” The appeal statute quoted grants more limited appellate powers, than ours, but is given full force according to its terms, including the trial de novo feature thereof. But it may be contended that this construction would grant a right of appeal and trial de novo in district court after issue joined in probate court, where either no testimony was taken in probate court or merely a perfunctory trial had, and would result in the probate court being used similarly as a justice court is often used where the parties intend to try the issue finally in the district court; and that would be in effect permitting the exercise by the district court of original jurisdiction in probate matters. This was precisely the argument advanced in the case of Christensen’s Estate, 15 Idaho, 692, 99 Pac. 829, the syllabus of which reads: “Upon the hearing in the district court the case must be retried.upon the same issues presented to the probate court, and witnesses may be called and testify the same as in the trial of any other cause. The fact that either party failed to present evidence in support of the issues made in the probate court is not a ground or reason for dismissing the appeal to the district court, and the proof offered or a showing that no proof was offered in the probate court cannot be presented to the district court by affidavit in support of a motion to dismiss the appeal, as the cause in the district court is to be tried de novo upon the issues made in the pro*511bate court. . . . When an appeal to tbe district court in a probate-matter is completed the case is transferred to the district court to be-tried de novo, and the fact as to the offering of proof or the failure to-offer proof in the probate court is of no consequence whatever.” And quoting further from the opinion: “A party to a probate matter upon appeal to the district court cannot present the proof taken in the probate-court or show the absence of proof by affidavit, as the district court is-required under the statute to proceed to a trial do novo; and whether either party made or failed to make a case in the probate court does not. concern or govern the district court in considering the issues presented to it for trial. . . . The statute does not limit the right to appeal in a probate matter to cases where the appellant offered proof in support of the issue before the probate court.”
Bearing in mind the construction of the supreme court of Idaho on their constitutional provisions, to be that the probate court there possesses sole, exclusive original jurisdiction, as granted ours under § 111 of our Constitution, the case from that' court of Be Sharp, 18 L.R.A. (N.S.) 886, is in point. We quote from page 897: “The matter of appeals from probate courts is within the legislative will, and the lawmaking power may regulate it, extend it, or limit it, as it sees fit.”
The case of St. Louis County v. Sparks, 11 Mo. 202, is apparently an authority supporting respondent’s contention, but in reality is a decision denying a trial do novo in the absence of a statute prescribing: the right thereto in appeals from county court, as is explained in Lacy v. Williams, 27 Mo. 281, where it is said “a trial de novo in the circuit court would not strictly be the exercise of appellate jurisdiction (St. Louis County v. Sparks). It is clearly competent for the general assembly to confer such a jurisdiction, but, until it is expressly done, we-do not consider that the bestowal of mere appellate power would authorize the courts to try causes do novo.” Many similar holdings may be-found. See 3 Century Dig. cols. 1369-1379. And many cases favor a trial do novo when granted by statute, but are decisions where the-statute is not challenged on the ground of alleged unconstitutionality.. As illustrative cases, see Hedderich v. Hedderich, 18 N. D. 488, 123 N. W. 276; Levy v. Moody, — Tex. Civ. App. —, 87 S. W. 205; Fitts v. Probate Ct. 26 R. I. 256, 58 Atl. 801; Decker v. Cahill, 10 Okla. 251, 61 Pac. 1101; Norway Plains Sav. Bank v. Young, 68 N. H. 13, *51236 Atl. 550; Mills v. Bradley, 1 Blackf. 541; Harris v. Foster, 5 Ark. 717. Many states, like California, by Constitution confer upon the legislature power to regulate and define probate and kindred jurisdiction, and therefore their decisions are inapplicable. The case of Prante v. Lompe, 77 Neb. 377, 109 N. W. 496, cited in the main opinion, it is true, is under a- Constitution where in concurrent jurisdiction of matters of guardianship is conferred upon the county and district courts; but the decision there made is not based thereon, but instead, is a holding that a trial de novo is not an exercise of original jurisdiction.
But respondent may argue that this interpretation of our constitutional provisions permits the legislature, by a process styled by it as an appeal, to abrogate the constitutional provision that probate courts shall have exclusive original jurisdiction in probate matters, and in effect confers original jurisdiction upon the district court; and, further, that if this conclusion is sound, the same consequences will result with' reference to trial matters generally, either probate as to the probate court, or as to law and equity in the district court, whereby the supreme court may in a similar manner, by legislative caprice, be made in practical effect a trial court concerning appeals from either district or probate courts. And we may be asked why, under our holding in this case, such may not inevitably follow, and if so, what constitutional barrier remains to define the jurisdiction of the several courts or keep separate their jurisdictions from confusion or intermingling at the will ■of the legislature. This is effectually answered by the determination of the meaning of the terms “original jurisdiction” and “appellate jurisdiction,” as in force at the time of the adoption of the Constitution; when considered with the phraseology of §§ 86, 103, 111, defining the jurisdiction of the supreme, district, and county courts respectively. With this it must be remembered that as to the probate court, § 111 of the Constitution is a grant of power; while as to the supreme and district courts the constitutional provisions are not wholly a definition of jurisdiction, but rather a limitation of powers already possessed. The district courts were courts of general jurisdiction in law and equity, the general common-law trial court; while the supreme court succeeds to the powers of the court of King’s bench through which appellate jurisdiction was exercised by the use of writs of error as to errors of law and writs of certiorari as to jurisdictional matters arising on the records *513■of the lower courts, with additional original jurisdiction to exercise a general superintending- power over the inferior courts and a similar original jurisdiction to be exercised by prerogative writs, the latter in enforcement of sovereign rights. Hence § 86, reading: The supreme court shall have appellate jurisdiction only, and shall have a general superintending control over all inferior courts, read in connection with § 87 thereof, but declares the general conception under the common law of the powers so vested and inherent in that court, and constituting it the supreme appellate tribunal of the state.
But as to the district court its jurisdiction was equally well understood and defined at statehood at a time when it was exercising, under the right of appeal to it from inferior courts, the power to try de novo matters of fact as well as law; when the term “appeal” so used meant more than the common-law process under writ of error; and when an appeal taken on both law and fact must have meant what it now means, the trial de novo in that court, wherein evidence was offered and the trial had without reference to the manner or the record of the trial in the court below. See Constitutional Debates, 293-317, & 570-571, concerning these constitutional provisions. With such a practice then prevailing, can we conclude that these constitutional provisions were drafted and adopted with reference thereto and with reference instead to the ancient notions prevailing in the early history of this country, under which an appeal, if existing, meant but a review of a record, instead of a trial do novo? In the words of Justice Bartholomew in 5 N. D. 446: “We have no warrant for saying that the constitutional convention intended to curtail that jurisdiction,” as then existing in such courts. And we have no better light in which to determine the intent of the Constitution and its framers than such contemporaneous history; remembering also that, as is said in Martin v. Hunter, 1 Wheat. 304, 4 L. ed. 97, the Constitution unavoidably deals in general language.” And again, in M’Culloch v. Maryland, 4 Wheat. 407, 4 L. ed. 601: “A Constitution to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind.” See also Ex parte Henderson, 6 Ela. 279.
And in reality the terms “appellate jurisdiction” and “original juris*514diction” are relative terms, and, lite the basic term “jurisdiction,” dependent upon the manner of use, the context, and the understanding had of the term in the light of its application. Jurisdiction to a state is in Sanders v. St. Louis & N. O. Anchor Line, 97 Mo. 26, 3 L.R.A. 390, 10 S. W. 595, held coextensive with its sovereignty, and conveys a different meaning than its use applied to courts. In one court, as in Cavanaugh v. Wright, 2 Nev. 166, is held when strictly construed to mean jurisdiction to retry and therefore to require trial de novo; while in another, as in Re McVay, 14 Idaho, 56, 93 Pac. 28, to require a trial of exactly the same issues as tried below, on the theory that to try de novo is to try anew, to strictly comply with which no new issues must he retried above. While still in ancient Florida cases, with an idea in mind of early procedure by writ of error, the appeal and trial de novo thereon is held to be the equivalent of only a review of the record (State ex rel. Pleasure v. McClellan, 25 Fla. 88, 5 So. 600; State ex rel. Chestnut v. King, 20 Fla. 399); and similar constitutional jurisdictional provisions to ours were accordingly interpreted so narrow that to so interpret them would convict the members of our constitutional convention of ignorance of prevailing procedure, and also require the thwarting of legislative will expressed in § 7985, in declaring it to be unconstitutional. This would be as unnecessary as it would be contrary to the present weight of authority.
We conclude, then, the statute assailed as unconstitutional is a valid exercise of legislative power, in that the right of a trial de novo in district court on an appeal in probate matters from the county court is but a regulation of the manner of exercise of the appellate jurisdiction conferred upon the district court by an appeal on law and fact.
In the original opinion the costs were taxed against respondent. In so doing we erred, and the order should be modified to the end that the right to tax costs be denied to both parties, appellants and respondents. It is, as respondents urge, that neither party prevailed on the appeal and appellants in fact may never establish their right to share in the estate, or may never appear further in this action; in which event, in failing to recover on the merits, they would be no more entitled to recover judgment for costs of respondents than respondents are entitled under present conditions to recover costs of them. To such extent the *515original opinion as filed is hereby modified. Neither appellants nor respondents shall be allowed to tax costs or disbursements herein.
The petition for rehearing is denied.