delivered the following concurring opinion.
It is urged by the petitioners that the writ of habeas corpus is appellate in its operation, and therefore should *394be issued as a matter of right. They rely largely upon the cases of Ex parte Clarke, 100 U. S. 399 (25 L. Ed. 715), and Ware v. Sanders (Iowa) 124 N. W. 1081. In both of these cases it is recognized as a proceeding, when issued by the supreme court, by which the judgment of the lower court may be reviewed, in so far as to ascertain whether the court had jurisdiction or its judgment was void for any other reason. But, by the Constitution of the United States, the Supreme Court can only exercise original jurisdiction in cases affecting ambassadors, public ministers, and consuls, and those in which a state is a party. Otherwise its jurisdiction is appellate and it disclaims any original jurisdiction to issue writs of habeas corpus. It recognizes the writ as a means by which it may exercise its appellate jurisdiction to review the judgments of the inferior federal courts, to determine whether they were rendered without jurisdiction, or are otherwise void; and usually, in connection therewith, it will issue a writ of certiorari to bring up the record, that it may examine it upon these questions, holding that the Constitution does not prescribe the manner in which its appellate jurisdiction may be exercised: Ex parte Virginia, 100 U. S. 339 (25 L. Ed. 676) ; Ex parte Siebold, 100 U. S. 371 (25 L. Ed. 717). In Ex parte Yerger, 8 Wall. 85 (19 L. Ed. 332), the court say:
“We regard as established upon principal and authority, that the appellate jurisdiction by habeas corpus extends to all cases of commitment by the judicial authority of the United States, not within any exception made by Congress.”
In Ex parte Siebold, 100 U. S. 371 (25 L. Ed. 717), it is held that it cannot issue the writ as an exercise of its original jurisdiction. In Ware v. Sanders, (Iowa) 124 N. W. 1081, the decision follows these cases because the Iowa constitution gives the supreme court supervisory control of inferior judicial tribunals throughout the state, *395and jurisdiction to issue the writ of habeas corpus, its issuance, being also provided for by statute, may doubtless be properly used as a means of exercising such supervision. The Oregon Constitution contains no such provision, but extends to the Supreme Court only original jurisdiction to issue the writ of habeas corpus in its own discretion. An appeal is in the nature of a writ of error which, in most cases, is a matter of right at common law, but with us it depends wholly upon statute granting the right and not upon any principle of the common law. The right is not guaranteed by the Constitution. It provides that this court shall have jurisdiction to revise the final decisions of circuit courts. But this provision is not self-executing and does not give the right, in the absence of legislative enactment, and therefore appeals can only be prosecuted in the manner provided by law: Portland v. Gaston, 38 Or. 533 (63 Pac. 1051). This writ is not one by which the judgment of the lower court may be reviewed in the Supreme Court.
The language of this provision of the Constitution clearly indicates that it was not the purpose to place upon the Supreme Court the duty to issue and hear as an original proceeding every writ of mandamus, quo warranto, and habeas corpus, when applied for throughout the state. It “may, in its own discretion,” issue the writ; that is, when, in the opinion of the Supreme Court, there is some necessity for an application to it, and only when there is some reason why adequate and prompt relief may not be obtained in the circuit or county court. To hold otherwise, this court might be burdened with these applications of which, until now, the circuit and county courts have had exclusive jurisdiction, and where under all ordinary circumstances the remedy is complete and prompt. There may often be cases in which it will be necessary or proper that this court shall take original *396jurisdiction of these writs, but the Constitution contemplates that they shall issue only in cases in which the court deems it proper in the exercise of a legal discretion.
In the case of Ex parte Ryan, 124 La. 286 (50 South. 161), upon an application to the Supreme Court for a writ of habeas corpus, it is held that the application would not be entertained if the hearing could be had before a court of first instance. In State ex rel. v. Sheriff, 44 La. Ann. 1014 (11 South. 541), it is said:
“Whilst the writ of habeas corpus is one of right, it is not one of course. A party seeking to avail himself of it is not at liberty to select for himself, absolutely, either the time or place for relief or the tribunals through which it is to be obtained. So far from conceding it to be the duty of this court to entertain and act under each and every application' for the writ on which we might legally do so, we are of the opinion that we should abstain from action where this may as well be done in competent lower courts, unless there should be special circumstances in the case making immediate direct action or intervention necessary or expedient.”
State ex rel. v. Sheriff, 36 La. Ann. 855; State v. McColley, 115 La. 406 (39 South. 81). In Commonwealth v. Baroux, 36 Pa. 262, an application for a writ of mandamus (included with habeas corpus in the grant of jurisdiction), it is held that although the Supreme Court has jurisdiction to issue the writ of mandamus, “it is in our discretion to refuse it as an original case, if there be an adequate remedy in another form or before another court.” And the writ was denied because no necessity for making the application to the Supreme Court was shown. In State ex rel. v. Barret, 25 Mont. 112, 117 (63 Pac. 1030), upon a similar application, it is held that there must be some good reason why the application is made to the Supreme Court for such a writ.
*397“District courts are ordinarily the primary forums, and in them should be commenced special proceedings, unless sufficient reasons exist why resort to the Supreme Court is necessary in the first instance.”
To the same effect are State ex rel. v. Lawrence, 38 Mo. 535, and State ex rel. McIlhany v. Stewart, 32 Mo. 379.
The conclusion is irresistible, that the new jurisdictional provision contemplates that the application to the Supreme Court for any of these writs should only be entertained in case there is some good reason why it cannot be issued and heard by the circuit or county court, which does not appear in this case.