Concurring Opinion.
Myers, J.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 *99such result is possible, is sufficient to require great caution, for the consequent evils could not be measured. Although the legislative branch of the government is imbued with as patriotic and just motives, and as high ideals, as this court, and has as just a desire to respect the limits of its jurisdiction, we know from the abundant history of the past, that it has indulged in occasional infractions of the Constitution, which required the interposition of the check of this court.
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 *100pass would we all come, upon the doctrine of expediency. However much the doctrine of expediency may obtain in furnishing speedy remedies to suitors, and however much it is to be desired, there are deeper considerations when it comes to so wide a departure from the established rules as this act contemplates, and upon that question I do not put it upon any consideration of expediency, amount, or classes of cases as furnishing a guide, but in the inherent power of this court to declare the law of the land, without regard to amount or classes of persons or interests involved. The Constitution (Art. 7, §4) reads that “the Supreme Court shall have jurisdiction coextensive with the limits of the State in appeals and writs of error, under such regulations and restrictions as may be prescribed by law. It shall also have such original jurisdiction as the General Assembly may confer.” Thus the court is by the Constitution vested with the supreme jurisdiction of appeals. It may have original jurisdiction when the legislature confers it, but it is not dependent upon the legislature for any appellate jurisdiction. That is fixed by the Constitution. That being true, what is meant by the phrase “under such regulations and restrictions as may be prescribed by law” I as those words would be understood in the connection used, giving them their usual and natural meaning, and having in mind the conditions existing at the time of the adoption of the Constitution. It seems to me that “regulations” refer to the procedure, and “restrictions” not only to the procedure but to the cases, or class of cases, 'in which appeals may be taken. For the moment I lay aside the question of the power of the legislature to restrict appeals, to present another matter.
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 *101cannot be abolished at all. However that may be, the code of 1881 is silent as to the abolition of writs of error, and under the rule, the common-law writ of error was revived. Donaldson v. State, ex rel. (1906), 167 Ind. 553; Baum v. Thoms (1898), 150 Ind. 378, 65 Am. St. 368.
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; *102Reece v. Knott (1861), 3 Utah 436, 24 Pac. 759; Sarchet v. United States (1838), 37 U. S. 143, 9 L. Ed. 1033; Bevins v. Ramsey. (1850), 52 U. S. *185, 13 L. Ed. 657; Wilson v. Wald (1885), 2 Wash. Ter. 376, 7 Pa. 857; Klein’s Appeal (1882), 11 Wkly. Notes (Pa.) 449; United States v. Gilson (1871), 1 Idaho 364; United States v. Hailey (1886), 118 U. S. 233, 6 Sup. Ct. 1049, 30 L. Ed. 173; In re Cooke (1834), 15 Pick. (Mass.) 234; Prentice Brownstone Co. v. King (1894), 39 Neb. 816, 58 N. W. 277; Baxter v. Trustees, etc. (1847), 16 Ohio 56; Unknown Heirs, etc., v. Baker, supra; Smith V. Gibson (1889), 25 Neb. 511, 41 N. W. 360; Doty v. Moore (1856), 16 Tex. 591; Bryant’s Heirs v. Stearns (1849), 16 Ala. 302; Gore v. Ray (1888), 69 Mich. 114, 36 N. W. 739; Lewis v. Wallick (1817), 3 Serg. & R. *410; Stiles v. Town of Windsor (1873), 45 Vt. 520; Cooper v. Summers (1853), 1 Snead (Term.) *452.
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*103ever its purposes, and however well intended, can have no other effect as to the class of cases submitted to it, and that a large and important class.
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.