Concurring Opinion.
Spencek, C. J.I wish to state my reasons for concurring in the conclusion reached in the prevailing opinion. The substance of appellants’ contention here is that by abolishing the right of transfer, the act of 1913 (Acts 1913 p. 454) makes of the Appellate Court a tribunal of final appellate jurisdiction equal in rank with the Supreme Court; that it is, therefore, unconstitutional and void.
The first question which naturally presents itself is, May the General Assembly create a court of appellate jurisdiction which shall be coordinate with and equal in rank to the Supreme Court? As preliminary to a consideration of this proposition it is necessary to determine whether the legislature may create any court with appellate jurisdiction. The provisions of the Constitution which govern the creation of courts and enable them to exercise judicial power are found in § §1, 4 and 8 of Article 7, in that instrument. They are as follows: “1. The judicial power of the state shall be vested in a supreme court, in circuit courts, and in such other courts as the general assembly may establish.” “4. The supreme court shall have jurisdiction co-extensive 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.” “8. The circuit courts *101shall each consist of one judge, and shall have such civil and criminal jurisdiction as may be prescribed by law.” These sections, when construed together, make it evident that the legislature is empowered to create such other courts both of appellate and original jurisdiction, as it may deem expedient. This is apparent from a reading of §1, but it must be borne in mind that while the legislature may create a court, that tribunal can receive its' judicial authority only from the Constitution. Therefore, while §1 authorizes the General Assembly to establish courts other than those expressly mentioned therein, such courts may exercise judicial functions only in accordance with §§4 and 8. Under these provisions our legislature has, from time to time, created superior, criminal, probate and juvenile courts with original jurisdiction, and has transferred thereto a part of the jurisdiction theretofore exercised by the circuit courts. The creation of these courts has been upheld by the Supreme Court, since the circuit court was given only such jurisdiction “as may be prescribed by law”, that is, by the governing will. The legislature, as a potent representative of that will, was thereby authorized to add to and take from the civil and criminal jurisdiction of the circuit courts as might seem expedient., So, too, the legislature is authorized to establish other courts with appellate jurisdiction but such tribunals may receive only such power as will vest in them under §4, supra. That section does not grant to the Supreme Court such jurisdiction “in appeals and writs of error as may be prescribed by law”, but invests that tribunal with entire jurisdiction “co-extensive with the limits of the state in appeals and writs of error, under such regulations and restrictions as may be prescribed by law.” The meaning of this last phrase should be apparent. The appeal, as a remedy of review, was unknown to the common law but is entirely of statutory origin. Its gift is wholly within the discretion of the legislature and that body may grant or withhold it as it may desire. In other words, the *102right to ail appeal may be “regulated” or “restricted” as the governing will, expressed through the legislature, may prescribe, but when once granted, the extent to which it may be carried presents another question. The very term “appeal” suggests a reaching out to a higher power and, as applied to our judicial procedure, it means a petition to a superior court for relief from the supposed error of an inferior tribunal. Obviously, there must be some one court of appellate jurisdiction from which no further appeal may be had — a court of last resort. Under our jurisprudence great reliance is placed upon the collected and published decisions of our Appellate Court as judicial declarations, valuable indeed, as legal expressions but binding only on the parties to the record, and, although intermediate courts of appeal may be created, there must be some method, other than moral suasion, whereby the decisions of the latter shall be kept in harmony with the decisions of the supreme tribunal. Honest mistakes will be made and there must always remain one court of review with authority to check the action of other appellate tribunals and to prevent confusion in their decisions. Por an instructive case emphasizing the necessity for such power of review, see Forsyth v. Hammond (1897), 166 U. S. 506, 512, 17 Sup. Ct. 665, 41 L. Ed. 1095. By our State Constitution that power is vested in the Supreme Court and no enactment of the General Assembly can take it away. In brief, the writer would thus state the rule: Where the right to an appeal from the judgment of an inferior tribunal to a court of appellate jurisdiction is not expressly secured by the Constitution, the legislature may, in its discretion, make the decision of the inferior court final. Randolph v. City of Indianapolis (1909), 172 Ind. 510, 88 N. E. 949; State v. Rockwood (1902), 159 Ind. 94, 64 N. E. 592; Sims v. Hines (1890), 121 Ind. 534, 23 N. E. 515; Rupert v. Martz (1888), 116 Ind. 72, 18 N. E. 381. But when the right to an appeal is once granted, its exercise may not be limited, under our *103Constitution, to an appeal to , some inferior appellate tribunal. Jurisdiction over appeal is, by §4, supra, vested in the Supreme Court, which means that such appeals must be determined by that tribunal or by some other appellate court whose decision is subject to be reviewed by the Supreme Court. The act by which our Appellate Court was established expressly provided that said court should “be governed in all things by the law as declared by the Supreme Court of this State and it shall not directly nor by implication reverse or modify any decision of the Supreme Court of this State.” Acts 1891 p. 39, §25, as amended in Acts 1893 p. 29, §1429 Burns 1908. It was thus recognized that such court was to be only an intermediate appellate tribunal, directly subject to the Supreme Court, and that is the only ground on which it can be constitutional^ justified. In this connection it may be suggested that this court has recognized the power of the legislature to limit the right of appeal in certain cases with an appeal to the circuit court. In such cases however, the cause is tried de novo, both as to issues of fact and issues of law, under the circuit court’s original jurisdiction. Appellate jurisdiction proper means the right to review supposed errors of inferior tribunals as apparent upon the records of such tribunals and, as thus defined, is not possessed by the circuit court. Miller v. Wabash R. Co. (1908), 171 Ind. 109, 111, 85 N. E. 967. Prom the above it is apparent that the legislature has the authority to create an intermediate court of appellate jurisdiction and may determine in what classes of cases appeals shall be taken directly to such court, but that the legislature cannot take from the Supreme Court its constitutional power to review the action of such inferior appellate tribunal. The remaining question is, Does the act of 1913 attempt to take away that power ?
The Constitution provides that the Supreme Court shall have jurisdiction in appeals, “under such regulations and restrictions as may be prescribed by law.” The term *104“law”, as there used, means the expressions of the governing will and such expressions are not limited to legislative enactments. The general principles and remedies of the English common law and the statutes of the British Parliament made in aid thereof prior to the year 1607, prevail in Indiana in so far as they are not inconsistent with the Constitution of the United States or of this State, and are not inconsistent with the Federal and State statutes. §236 Burns 1908, §236 R. S. 1881; Grimes’ Exrs. v. Harmon (1871), 35 Ind. 198, 9 Am. Rep. 690; Dawson v. Coffman (1867), 28 Ind. 220.
The principal processes known to that system of jurisprudence by which to have reviewed in a court of appellate jurisdiction the judgment of an inferior tribunal, were the writ of error and the writ of certiorari. Whether the former is still in force in this State need not be considered. It is enough to say that in practice, at least, it' has beeh, wholly or partly, superseded by the statutory appeal. But the writ of certiorari has never been interfered with by any legislative enactment. It may be said the “transfer act”, which the act of 1913 seeks to repeal, was in aid thereof and is not inconsistent with any provision of our constitutional or statutory law. While the office of the common-law writ of certiorari is, generally, to confine inferior tribunals within their jurisdiction and to prevent them from exercising powers not delegated to them, yet it “may be resorted to where, having jurisdiction of a proceeding, those tribunals make an order or judgment which exceeds their powers.” Stokes v. Knarr (1860), 11 Wis. 407, 411. So, in the case before us, while 'the legislature had authority to and did create an appellate court, vested with authority to determine appeals in accordance with the law of the land, yet there still remained to the Supreme Court the power vested in it by the Constitution to review the action of the Appellate Court if it should appear that that court had erred. The “transfer act” gave litigants of this *105State no new right but aided and made more simple in part the service of the writ of certiorari. In fact, neither the writ of certiorari, except where made so by statute, nor the order of transfer, as known to our practice, is a matter of right available to every litigant. Their issuance is a matter of judicial discretion, to be granted as justice seems to require. That the writ of certiorari is available in this State is evident. In Newman v. Gates (1898), 150 Ind. 59, 19 N. E. 826, this court, in effect, recognized that the writ obtained in our practice but declined to issue it in that case for two reasons: (1) that the decision of the Appellate Court did not contravene a ruling precedent of the Supreme Court, and (2) that the court was of the opinion that the decisions of the Appellate Court were final. It may be seriously doubted whether the court was called upon to determine the latter proposition, but in any event, in the opinion of the writer the decision should be disapproved in so far as it suggests that the Appellate Court has or can have final appellate jurisdiction.
While it is apparent that the court calendars are congested and that as a matter of expediency it might be well to find a way to relieve the existing condition, yet such must be a constitutional way. The oath of a judge of this court requires that he support the Constitution of this State, and expediency can never stand in the way of supporting the Constitution. The-writer hereof does not believe that all the dire calamities are to be visited upon the people and property of this State as a result of this court, deciding that our Constitution means what it says, that “a supreme court” means one and does not mean two. To hold that the legislature can, by virtue of the language “regulations and restrictions as may be prescribed by law”, as in the Constitution used, confer final jurisdiction of appeals and writs of error upon some appellate tribunal other than the Supreme Court, thereby making the jurisdiction of such court coordinate with the Supreme Court, means that the legisla*106ture may create as many Supreme Courts of this State as it should desire. Such a proposition needs but the statement thereof to show its absurdity. There can no more be two supreme courts created by legislative enactment, under whatever name they may be given, than there can be two governors of this State.