Dissenting Opinion.
Morris, J.I cannot concur in the result reached by the majority opinion; with some of its declarations of law I agree, but against others I most earnestly protest.
The petitioner, in asserting the invalidity of the act, relies ehiefly on the majority opinion, in Ex parte France (1911), 176 Ind. 72, 95 N. E. 515, which held that the act of 1911 violated §4, Art. 7, of our Constitution, because it denied jurisdiction to this court of appeals from money judgments *107for over $6,000; and that it violated §1, Art 7, because, as held, it invested the Appellate Court with a rank coordinate with, or superior to, that of this court. The particular reason is not given, in such majority opinion, for the last conclusion reached, but, as I interpret it, it was because the act was deemed to give the Appellate Court the power to determine the boundaries of its own jurisdiction. Pittsburgh, etc., R. Co. v. Peck (1909), 172 Ind. 562, 88 N. E. 939. While I do not think the act of 1911 was justly chargeable with the construction that it gave the Appellate Court that power, such question is eliminated from consideration here, because §2 of the act of 1913 (Acts 1913 p. 454) expressly fixes, in this court, the power- to determine such question. This case however does present the same question that arose in Ex parte France, supra, relating to the legislative power, under §4, Art. 7, to withhold, from this court, appeals from money judgments for over $6,000; for in that respect, the acts of 1911 and 1913, are exactly alike. On that question, the prevailing opinion here repudiates the majority opinion in Ex parte France, supra, and adopts the rule contended for in the dissenting opinion of Morris, J., in that case, as shown by the following: “It is a well-settled principle of law that appeal is a matter of legislative discretion under that provision of §4, supra, which provides that the legislature may regulate and restrict appeals, and has been so decided many times, by this court and the courts of other states, having similar provisions in their constitutions. The Constitution of this State does not grant to any one the right to an appeal to this court, or any other court.” Ante 89. (Italics mine throughout this opinion.)
In support of the above declaration, many cases are cited, among which is Ex parte Sweeney (1891), 126 Ind. 583, 27 N. E. 127, which ordered transferred from the docket of this court to that of the then nervly-ereated Appellate Court, for exclusive final determination, a great mass oYundetermined causes theretofore regularly appealed to this court; and, *108among the number, was Taggart v. Tevanny (1891), 1 Ind. App. 339, 27 N. E. 511, involving a judgment against a decedent’s administrator for $19,250.
Inasmuch as the points presented in petitioners’ brief are rejected in the majority opinion here, it would, in ordinary cases, be improper for this court to consider the constitutionality of the 1913 act, for it is a settled rule that courts will not, unless absolutely necessary, declare void the act of a coordinate' branch of the government.
It is true that Mr. Abram Simmons, one of petitioners’ attorneys, did, in his oral argument (afterward printed), suggest reasons for holding the act void, and these seem to have been adopted in the majority opinion here; but Rule 22 of this court, expressly provides that no point, not contained in the statement thereof in appellants’ brief, “shall be raised afterwards, # # * in oral or printed argument. ’ ’
However, where the face of the record presents a question of this court’s jurisdiction of the subject-matter, the above rule was not intended to apply. At the threshold of every such cause, this court is met by a question that must be determined regardless of briefs or arguments, and it must be determined in the absence of either, just as necessarily as if presented most elaborately. A court’s jurisdiction of the subject-matter cannot be conferred by agreement, nor waived by inaction. This court must know the boundaries of its own jurisdiction, and will not subject itself to the reproach implied by the suggestion that it must, or may, wait upon the advice of counsel, before determining, in any particular cause, its jurisdiction, or lack thereof, over the.subject-matter disclosed. Branson v. Studabaker (1892), 133 Ind. 147, 33 N. E. 98; Ewbank’s Manual §289. I am therefore of the opinion, that, if the act in question is void for the reason that the Constitution invests this court with the exclusive power to finally decide petitioners’ (appellants’) cause, it is the right and duty of this court to so declare, although such reason has not been presented in petitioners’ brief.
*109I also agree with, the declaration in the prevailing opinion that “The power to confer jurisdiction, in any particular case, is in the legislature.” When it is conceded that the power to confer jurisdiction in any ease, is a legislative one, and that the power to exclude appeals to this court is also legislative, and further, that the constitution does not grant to any one the right of appeal to the Supreme Court, surely the validity of this act is conceded, for the Constitution, since the amendment of 18.81, will be searched in vain for any provision prohibiting the legislature from vesting in some court, other than this, jurisdiction in any particular class of appealable cases. The power to enact laws, generally, is vested in the General Assembly. It is not necessary to search for specific constitutional authority to enact a given law. On the other hand, one asserting the uneonstitutionality of an act must point out the specific constitutional inhibition against it. “The legislative department is not made a special agency, for the exercise of specifically defined legislative powers, but is intrusted with the general authority to make laws at discretion.” Cooley, Const. Lim. (7th ed.) 126. It is consequently of no importance whatever, that no specific authority is found in the Constitution to confer jurisdiction in appeals, in the classes of eases here in controversy; the general vesting of legislative power gives the authority, unless specifically prohibited; and the amendment of 1881 removed all pretense of such inhibition.
I further concur in the majority opinion in its declaration to the effect that the functions of the writ of error, as known to the framers of our Constitution, are merged in, and performed by, our statutory appeal. It is said in the majority opinion here: “And while the legislature may withhold from this court, jurisdiction in certain cases, it cannot confer final jurisdiction upon any other tribunal * * * and make its actions final.” Against any such doctrine I most earnestly protest. It wholly ignores the purpose and effect of the amendment of 1881, of §1, Art. 7, of our Con*110stitution. It further ignores the power, given the legislature, before the amendment of 1881, to confer final appellate jurisdiction, in appeals from statutory nisi prius courts, on courts other than the Supreme; and, viewed in the light of our State’s history, subverts the intent and purposes of the people in adopting and amending the provisions of our Constitution, relating to courts. Section 1, Art. 7, as originally adopted in 1851, read as follows: “The judicial power of the state shall be vested in a Supreme Court, in circuit courts, and in such inferior courts as the General Assembly may establish.” By the amendment of 1881, the word “other” was substituted for “inferior”.
Section 8, Art. 7, provides that circuit courts “shall have such civil and criminal jurisdiction as may be prescribed by law.” Appellate jurisdiction, in circuit, or statutory, courts, was neither conferred nor withheld in express terms, but, as the statutory courts permitted, were, by §1, made inferior to circuit courts, by necessary implication no statutory court could review the decisions of the superior circuit courts. Aside from this limitation, final appellate jurisdiction was conferred by legislation, on circuit courts, to the exclusion of the Supreme Court, in appeals from statutory courts, both under the Constitution of 1851, and that of 1816. The court provisions of the Constitution of 1851 were copied, substantially, from those of the Constitution of 1816. R. S. 1843 p. 53.
Under the Constitution of 1816, the legislature created a probate court, with broader jurisdiction than is usually conferred on such courts, and which included actions at law, or suits in equity, in all actions against heirs, devisees, executors and administrators, and their sureties, and, actions for partition. Such courts were invested with equity powers. An appeal from their judgments was allowable to either the circuit or Supreme Court, at appellant’s option. R. S. 1843 p. 668.
In Brownlee v. Whitesides (1846), 8 Blackf. 80, a probate *111court rendered judgment for defendant. The plaintiff appealed to the circuit court which reversed the judgment, and remanded the cause to the probate court. From the judgment of the latter court, the defendant appealed to this court. In dismissing the appeal, for lack of jurisdiction, this court, by Dewey, J., said: “These provisions (R. S. 1843 p. 668) confer upon the circuit courts concurrent appellate jurisdiction with the Supreme Court over the judgments, decrees, orders, and proceedings of the probate courts; and have, as we conceive, the effect of rendering the decision of either court conclusive as to all matters adjudicated by it. The judgment now attempted to be reversed was rendered by the probate court in conformity to the decision of the circuit court sitting as a court of errors. It cannot be again revised either in that court, or this. We have no jurisdiction over the cause.” This case was followed in Gore v. Gore (1850), 2 Ind. *55; Indiana Mut. Fire Ins. Co. v. Routledge (1855), 7 Ind. 25, and other cases. The decisions of this court on the subject were uniform and consistent.
The Constitution of 1816 conferred no appellate jurisdiction on the circuit court. It, like the present one, conferred on the Supreme Court, unlimited capacity to receive appeals, and yet it was, as held, within the legislative discretion to confer on the circuit court, concurrent, coordinate, appellate jurisdiction with the Supreme Court, in appeals from statutory courts and such jurisdiction was final. And such legislation was deemed as no invasion of the supremacy of this court. Two of the above cited cases were decided shortly before the meeting of the Constitutional Convention, which formulated our present Constitution. It is a familiar rule, that where a constitutional provision has been construed and acted on by the legislature, and the legislative construction has been adopted' by the Supreme Court, the people, in readopting such provision adopt also such construction, unless a contrary intention appears.
*112In 1852 the probate court had been abolished, and the common pleas court succeeded to its jurisdiction. Section 13 of the common pleas court act of 1852, provided that an appeal should lie from such court, in all cases, “to the circuit or Supreme Court, at the option of the party applying therefor”. -2 R. S. 1852 p. 18. This act was construed in Duncan v. Duncan (1854), 6 Ind. 28, which followed the former decisions of Brownlee v. Whitesides, supra, and Gore v. Gore, supra. See, also, Swift v. Lane (1857), 9 Ind. 182. It thus appears that under the new Constitution, before the amendment of 1881, as well as the old, it was competent to give the circuit court equal power with this court, in appeals from judgments of statutory courts.
Long before the amendment of 1881, intermediate appellate jurisdiction from a statutory court, was given the general term of the superior court. Acts 1871 p. 48, § §1343-1355 R. S. 1881, §§1464-1476 Burns 1908.
As early as 1865, it became impossible for the circuit court of Marion County to dispose of the business brought before it. The legislature created a criminal court, with jurisdiction, in criminal cases, original and appellate, the same as conferred on circuit courts. Acts 1865 (s. s.) p. 150. In 1871, the superior court of Marion County was created, with jurisdiction in civil cases substantially concurrent with that of the circuit court. Succeeding legislatures created criminal and superior courts — modeled after those of Marion County — in great numbers, to meet the demands of increased' business. The session of 1877, which proposed the constitutional amendment adopted in 1881, created superior courts in Cass, Vanderburgh, and Wayne counties, and provided for another judge of the Marion superior court. All acts creating such courts were held constitutional. Combs v. State (1866), 26 Ind. 98; Clem v. State (1870), 33 Ind. 418; Guetig v. State (1879), 66 Ind. 94, 32 Am. Rep. 99; Smith v. Smith (1881), 77 Ind. 80.
In Combs v. State, supra, this court curtly disposed of *113the technical constitutional objections urged against the act of 1865, in the following language: “Large comm unities require more time for the transaction of judicial business than small ones, and if one court cannot do the business there must be more created. And it is idle to say that the legislature cannot provide for such an exigency.”
Each of these statutory courts was given less jurisdiction than the circuit courts, because, by §1, Art. 7, before the amendment of 1881, such courts were “inferior” to the circuit courts; and it was deemed that extent of jurisdiction was then a test of superiority. Smith v. Smith, supra; Board, etc. v. Albright (1907), 168 Ind. 564, 572, 81 N. E. 578.
While the object of the 1881 amendment was to relieve this court of the burden of an ever increasing number of appeals (circuit courts were already relieved by superior and criminal courts) the radical change in the constitutional provision, wiping out the limitation of inferiority, in courts of statutory creation, incidentally affected the status of circuit courts, so that now statutory courts may be created, with the identical jurisdiction of circuit courts. Board, etc. v. Albright, supra. In that case, in an opinion evincing great learning, it was said. “When the constitution * * * required that such courts as might be created should be ‘inferior’ to the circuit courts, their relative rank was properly tested by the extent of their jtirisdictions, but, with the word ‘other’ substituted, it appears to us that no possible consti: tutional objection could exist to the creation of a court which shared with the circuit court its jurisdiction and its power. * * * No question of making said courts inferior to the highest nisi pritis courts is here involved. When an attempt is made, by the narrowing of their jurisdiction, to put them in the category of inferior courts, it will be time enough to vindicate their right. The hope of constitutional government for the future does not require that the legis*114lative power should in all eases he bound down with iron bands. ’ ’ The act in question there, conferred on the newly-created superior court of Elkhart and St. Joseph counties;the same quantum of jurisdiction as the law confers on circuit courts. Acts 1907 p. 7, §1574 Burns 1908.
Constitutions must be considered as a whole. In amending one section, other sections not amended, may be indirectly affected, and they must be considered in their new relation, rather than in the old. The cardinal object of construing a constitutional provision is to “give effect to the intent of the people in adopting it.” Cooley, Const. Lim. (7th ed.) 89. “Narrow and technical reasoning is misplaced, when it is brought to bear upon an instrument framed by the people themselves, for themselves, and designed as a chart upon which every man, learned and unlearned, may be able to trace the leading principles of government.’ ’ Cooley, Const. Lim. (7th ed.) 93. “A reasonable construction is what such an instrument demands, and should receive; and the real question is, what the people meant, and not how meaningless their words can be made by the application of arbitrary rules.” Cooley, Const. Lim. (7th ed.) 95.
Section 4, Art. 7, must be considered in relation to §1 of the same article, as the latter reads since the amendment. It ' is not a universal rule that the same word is used with the same sense wherever it occurs in a constitution. Board, etc. v. Albright supra, on page 570. Mr. Justice Story says: “It does not follow, either logically or grammatically, that because a word is found in one connection in the Constitution, with a definite sense, therefore the same sense is to be adopted in every other connection in which it occurs. This would be to suppose that the framers weighed only the force of single words, as philologists or critics, and not whole clauses and objects, as statesmen and practical reasoners; and yet, nothing has been more common than to subject the Constitution to this narrow and mischievous criticism. Men of ingenuity and subtle minds, who seek for symmetry and *115harmony in language, having found in the Constitution a word used in some sense which falls in with their favorite theory of interpreting it, have made that the standard by which to measure its use in every other part of the instrument.” 1 Story, Constitution §454.
Story further says that even in literal interpretation the rule observed is to follow that sense of the words which is agreeable to common use, without attending to etymological fancies, or grammatical refinements, and that the causes that led to the enactment are often the best exponents of the words used. 1 Story, Constitution §400.
Our Constitutions and laws were made the better to secure to all the people the right to life, liberty and the fruits of their industry. Courts were created to better administer justice, "speedily and without delay”, and to make effective the intent of the people disclosed in their organic and statutory law. The law is a practical thing, designed for practical people, engaged in the State’s manifold industries. Our Constitution was not made by philologists or lexicographers, and its plain provisions should not be repealed by resort to "etymological fancies or grammatical refinements.” When this court knows, as it does here, what the people intended by the 1881 amendment, such intent, after the lapse of thirty-two years, should not be thwarted by some technical dictionary definition. Moore-Mansfield, etc., Co. v. Indianapolis, etc., R. Co. (1913), 179 Ind. 356, 101 N. E. 296.
In the year 1877, when the population and wealth of the State were much less than now, it became evident that it was a physical impossibility for this court to determine all the causes appealed to it. While it had repeatedly been held that final jurisdiction, in appeals from other than circuit courts, might be conferred on a court other than the Supreme, it was not then competent to give any court, other than this, final jurisdiction of appeals from circuit courts. In 1877, appeals from circuit courts constituted the great *116volume of business on the docket of this court. Since then, superior courts have been created in such, numbers that appeals from them are almost as numerous as those from circuit courts.
In 1877, the crowded condition of the docket of this court,' afforded a condition of actual peril, and §12 of our Bill of Rights (§12, Art. 1, Constitution), which guarantees a speedy administration of justice was fast becoming an unredeemed pledge. To remedy such condition, and relieve this court of a part of its appellate burden, the legislature proposed the amendment to §1, Art. 7, by substituting “other” for “inferior” and thereby unshackling the legislature of the limitation on its power to create a court to finally determine appealable cases. There can be no doubt about the purpose of the legislature in proposing, or of the people in adopting, this amendment.
In State, ex rel. v. Noble (1889), 118 Ind. 350, 364, 21 N. E. 244, 4 L. R. A. 101, 10 Am. St. 143, it was said, “We Icnow judicially that our Constitution was so amended as to invest the legislature with power to create courts superior to the circuit courts, and that this was done for the purpose of enabling litigaoits to have appeals disposed of by a constitutional tribunal.” This opinion was written by Elliott, J., who had been one of the judges of the superior court of Marion County, previous to 1881, and who was a judge of this court when the amendment was adopted.
State, ex rel. v. Mount (1898), 151 Ind. 679, 51 N. E. 417, 52 N. E. 407, was decided after the creation of the Appellate Court. The opinion was by Howard, J., author of the Appellate Court act of 1891. This opinion quotes with approval, relative to the purpose of the 1881 amendment, the above declaration from State, ex rel. v. Noble, supra. In the course of the opinion it was further held, on page 682: “Under authority of section 1, Art. 7, of the Constitution, which provides that, 'the judicial power of the State shall be vested in a supreme court, in circuit courts, and in *117such other courts as the General Assembly may establish,’ the legislature, by an act approved February 28th, 1891, created the Appellate Court. ’ ’
Neither the purpose, nor the scope, of the amendment of 1881 is discussed in the prevailing opinion, yet, what this court judicially knew in 1889 and 1898, it still knows judicially, and surely the people, with such known purpose in view, in adopting the amendment, have the right to have such purpose given effect by the courts in construing an act passed in furtherance of such intent. Courts have no rightful power to disregard or ignore a constitutional provision; yet, in my judgment, the prevailing opinion can only stand, even as to circuit court appeals, by ignoring, or disregarding the effect of the 1881 amendment; as to appeals from statutory courts, legislative power held prior to the amendment must be disregarded, if the majority opinion shall stand.
The logical effect of the prevailing opinion is to deny the constitutional existence of the Appellate Court. It 'would be absurd to hold that it was ever created as an inter-_ mediate court of appeals. Not a vestige of intermediate jurisdiction was given it for the first ten years of its existence. On the contrary, it is repeatedly declared in the act of its creation that its jurisdiction is “final” and “exclusive”. Acts 1891 p. 39, §§1, 10, 12, 13, 19.' There is no room for construction here. There was no intention to create anything but a court of last resort, for cases appealable to that court.
By the amendment of 1901 (Acts 1901 p. 565) the Appellate Court was given intermediate jurisdiction in appeals from money judgments of over $6000, but this provision was repealed in 1907 (Acts 1907 p. 237). The amendment of 1901, as amended in 1907, makes the Appellate Court’s action final, except in cases (a negligible number) where the opinion of that court contains an erroneous declaration of law. It would be absurd to charge the legislature of 1901 *118with, the intent to create a court whose only constitutional (intermediate) jurisdiction would he in eases where the court erroneously declared the law in its opinions, for it must not be forgotten that by the act, as amended in 1901, the action of the Appellate Court is final and exclusive, in the absence of an erroneous declaration in the opinion, and only where such error exists has this court any power to review its action.
The transfer provision of the 1901 amendment was not intended to perform any function of an appeal or writ of error, as then known to our Constitution, or statutory laws, or to the common law. As said by Jordan, J., in Ex parte France, supra, the purpose was not in the interest of the losing litigant, “but was to give the Supreme Court a revising hand over the opinions of the Appellate Court.” In reality, it is but a censorship of Appellate Court opinions —a thing unknown to any system of jurisprudence previous to the act of Congress of 1891. Forsyth v. Hammond (1897), 166 U. S. 506, 17 Sup. Ct. 665, 41 L. Ed. 1095.
That the transfer provision of 1901 was not intended to perform any office of the common law writ of certiorari is manifest when we consider that such office, or function, was an entire stranger to the common law. In reality, the common law writ of certiorari was used principally to keep inferior courts within the boundaries of their jurisdiction, and it never performed any of the regular functions of a writ of error or appeal. 4 Ency. Pl. and Pr. 91; People v. Judge, etc. (1840), 24 Wend. (N. Y.) 249; Milwaukee Iron Co. v. Schubel (1872), 29 Wis. 444, 9 Am. Rep. 591.
This court under the transfer act, has no power to review the record in a case appealed to the Appellate Court, unless that court has written an opinion, and unless the opinion contains some erroneous declaration of law. In an application to transfer, the question is not whether the decision of the Appellate Court is right or wrong, but whether the opinion contains an erroneous declaration. United States *119Cement Co. v. Cooper (1909), 172 Ind. 599, 88 N. E. 69. If the decision of the Appellate Court is right, the case must be transferred if there is an erroneous legal statement in the opinion. Klein v. Nugent Gravel Co. (1904), 162 Ind. 509, 70 N. E. 801. On the other hand, if the decision of the Appellate Court is clearly wrong, if no opinion is written, or, if written, it contain no erroneous declaration of law, this court has no power of review. Barnett v. Bryce Furnace Co. (1901), 157 Ind. 572, 62 N. E. 6.
The Appellate Court is required to write opinions only in cases where judgments are reversed, and, of course, where there is no opinion, there can be no transfer, yet, where there is an opinion, if error does not appear on the face thereof, there is nothing to censor, and, the application to transfer must be denied, although the record might disclose a judgment affirmed, which was rendered on a complaint that failed to state a cause of action, and which was unsupported by any evidence.
The narrow scope of the transfer provision proved unsatisfactory to the bar of the State. See proceedings, State Bar Association, 1910, 190-207. The practical operation of the transfer act of 1901, during its twelve years of existence, shows that it has only given this court the power to review less than five per cent of the cases appealed to the Appellate Court. In the other ninety-five per cent, the decisions of the Appellate Court were as much a finality as the decisions of this court. Yet, during the first ten years of the existence of the transfer act, a thousand or more undisposed of cases had accumulated on the dockets of the two courts, and the Appellate Court was (March, 1911) about two and one-half years behind in its work. It is no wonder the bar complained of a provision which absorbed so much time of this court as to practically nullify the constitutional guaranty of a speedy administration of justice, with no result except the transfer of probably about fifteen cases per year — a number not greatly exceeding that of the former decisions *120of this court overruled in the same space of time. To remedy such confessed evil, the legislature of 1911, passed the act held invalid in Ex parte Frcmce, supra, for reasons that are repudiated in the prevailing opinion here. The legislature of 1913 had the same purpose in view — getting rid of the law’s delay — but this purpose is thwarted by reasons not supported by any authority, and, in my judgment, even less cogent than those assigned for the ruling in Ex paA'te France, supra.
"Within one month after the amendment of 1881 was adopted, the legislature passed an act designed to relieve the docket of this court of its great accumulation of undisposed of cases. A Supreme Court Commission was created, consisting of five judges, to be appointed by this court. Acts 1881 p. 92. Its life was orginally limited to two years, but in 1883 it was continued for a like period. In 1885 the work designed for the commission was practically completed, and its life was not extended. The validity of the Supreme Court Commission act was never questioned in this court. While this commission was not a court, the commissioners examined the records and wrote the opinions, subject to this court’s approval, and accomplished all the practical purposes of a separate court of appeals.
In 1889, the utter impossibility of one court reviewing all the records in appeals was again demonstrated in the accumulation of undisposed of cases. The legislature passed a peculiar act, by which it attempted to “appoint deputy judges”, to relieve this.court. The act was declared invalid in State, ex rel. v. Noble, supra. The succeeding legislature created the Appellate Court.
It is said in the majority opinion that the question of the power of the legislature to invest the Appellate Court with final jurisdiction of appeals and writs of error has never been presented to this court for decision. This is erroneous, but, assuming its correctness, it by no means follows that this court would be justified in stinking down the Appel*121late ' Court act. After a practical construction of an act, such as this, has been acquiesced in for more than twenty-two years by all departments of our government, including this court, and by the entire bar and people of the State; when the results of overturning such construction would work such injustice, hardship and confusion, as even a constitutional amendment could not remedy, it would be the duty of this court to refrain from its overthrow. Moore-Mansfield, etc., Co. v. Indianapolis, etc., R. Co., supra. In Fall v. Hazelrigg (1874), 45 Ind. 576, 585, 15 Am. Rep. 278, it is said: “It is a well settled rule of construction, that a contemporary exposition of a constitution or a statute practiced and acquiesced in for a period of years, fixes the construction, and the courts will not shake or control it. ’ ’
In Stewart v. Laird (1803), 1 Cranch *299, 2 L. Ed. 115, it was contended that judges of the Supreme Court of the United States had. no right to sit as circuit judges. It was said: “It is sufficient to observe, that practice, and acquiescence under, it, for a period of several years, commencing with the organization of the judicial system, affords an irresistible answer, and has indeed fixed the construction. It is a contemporary interpretation of the most forcible nature. This practical exposition is too strong and obstinate to be shaken or controlled. Of course, the question is set at rest, and ought not now to be disturbed. ’ ’
In Rogers v. Goodwin (1807), 2 Mass. 475, it was said on this subject: “Although, if it were now res integra, it might be very difficult to maintain such a construction, yet at this day the argument ab inconvenienti applies with great weight. We cannot shake a principle which in practice has so long, and so extensively, prevailed. If the practice originated in error, yet the error is now so common that it must have the force of law. The legal ground, on which this provision is now supported, is that long and continued usage furnishes a contemporaneous construction, which must prevail over the mere technical import of the words.” Evi*122dently what is meant in the majority opinion, in declaring that the question has not been presented before to this court for decision, is, that the precise question was not presented by the briefs of parties litigant. If so, the same is true here, and the majority opinion here, on such theory, must be held mere dictum, for no question decided here is presented by petitioners’ brief. The question was presented by the briefs in Newman v. Gates (1898), 150 Ind. 59, 49 N. E. 826, and decided by this court. The question of the validity of the Appellate Court act has been actually and properly decided, scores and hundreds of times by this court.
It would be a reproach to this court to assert, that when it, by the decision in Ex parte Sweeney (1891), 126 Ind. 583, 27 N. E. 127, transferred to the Appellate Court for final exclusive determination, a great mass of undisposed of eases, it did not decide the constitutionality of the Appellate Court act of 1891. Surely it will not be contended that this court will permit a stranger to take from it the records in appeals, of which it has lawful jurisdiction, and thus deprive it of its sole constitutional authority to finally determine such appeals, and afterwards justify its dereliction by the absurd plea that no lawyer appeared to advise it of its constitutional authority. In Ex parte Sweeney, supra, it was said: “The petition * * * requires an examination of the act * * * creating an Appellate Court. * # * It carves out of the general appellate jurisdiction of the State a part and transfers it to the court it creates. It takes from a great field designated parts. * * * It is only necessary to ascertain and decide what classes of cases are declared to he within the jurisdiction of the newly-created court. * * * cierk- wm make the transfer of cases to the Appellate Court, as required by section 19 of the act, under the rules laid down in this opinion. ’ ’
In Branson v. Studabaker (1892), 133 Ind. 147, 149, 33 N. E. 98, this court, on its own motion, ordered briefs filed *123by the parties on the question of jurisdiction. In appellee’s brief it was contended that jurisdiction was in this court because the Appellate Court act was unconstitutional, and the appellant contended that jurisdiction was here because title to real estate was involved. This court decided the Appellate Court act constitutional, but held that this court had jurisdiction. In the course of the opinion it was said: “A question of jurisdiction is in the record and must be determined. # * * A court must look to the law for its jurisdiction of the subject, and must, notwithstanding the agreement of the parties, decline to entertain jurisdiction if it is not conferred by the law. "We must, therefore, ascertain and determine whether this appeal is within the jurisdiction of this tribunal, or within that of the Appellate Court.” In passing on the validity of the Appellate Court act it was said on page 152: “The provisions of the statute creating the Appellate Court, and authorising the transfer to that court of cases appealed to this court prior to its enactment are valid. * * * The Appellate Court is a legal tribunal in which all appeals over which it is given jurisdiction may be heard and determined.”
In Newman v. Gates (1898), 150 Ind. 59, 49 N. E. 826, a petition was filed in this court, for a writ of certiorari, to the Appellate Court, to require a certification of the record to this court, for the purpose of determining whether the Appellate Court had exceeded its jurisdiction. On behalf of respondent, it was contended by counsel, as set forth in their “points and authorities”, that “the Appellate Court was created and given exclusive jurisdiction in certain cases by the act of 1891 ’ ’ and, as to such cases, it is a court of “last resort”, and its decision final. In its opinion denying the writ the court held: “The act creating that court provides expressly for a court of final resort although with certain defined and limited jurisdiction. In all eases in which the Appellate Court is given jurisdiction its decisions are made final and not subject to review, whether by appeal *124or by writ of certiorari. The evident purpose of the legislature was not to provide for an intermediate court, but for one of last resort.” The opinion was by Howard, J., who was one of the members of the General Assembly that passed the Appellate Court act of 1891.
James v. Lake Erie, etc., R. Co. (1897), 148 Ind. 615, 48 N. E. 222, was a case first appealed to the Appellate Court and reversed; the complaint was then amended so as to confer jurisdiction on this court, on the second appeal. It was contended on the latter appeal, that this court was not bound by the law of the case as declared in the opinion of the Appellate Court, on the first appeal. In the opinion by Ilaekney, J., it is said, on page 617: “The lower court, in this cause, followed the law of the case as declared by the Appellate Court, a court of last resort, whose opinion in this case requires the respect and obedience, both of the trial court and of this court.” This case was followed in Ohio Valley Trust Co. v. Wernke (1913), ante 49, 99 N. E. 734, and, the holding in the latter case would have been erroneous, if the Appellate Court were not one of “last resort.”
In Baker v. Groves (1891), 126 Ind. 593, 26 N. E. 1076, in an opinion by Miller, J., this court said: ‘ ‘ The question of jurisdiction meets us at the threshold. * * * We have concluded that this, and other similar cases, are within the exclusive jurisdiction of the Appellate Court. # * * The clerk of this court is, therefore, ordered and directed to transfer this cause to the Appellate Court for final determination.”
In Parker v. Indianapolis Nat. Bank (1891), 126 Ind. 595, 26 N. E. 881, this court by Coffey, J., said: ‘ ‘ The first question confronting us, * * * relates to the jurisdiction of this court- * * *. Section one of an act of the General Assembly of 1891, creating an Appellate Court, provides that said court shall ‘have exclusive jurisdiction of all appeals * * * in * * * all cases for the recovery of money *125only.5 * * * We are of the opinion that we have no jurisdiction in this cause, and it should be certified to the Appellate Court. It is so ordered.” Like action was taken in City of Hammond v. New York, etc., R. Co. (1891), 126 Ind. 597, 27 N. E. 130.
In Williams v. State, ex rel. (1891), 130 Ind. 58, 29 N. E. 1078, it was held in an opinion by Olds, J., on an appeal to this court, in a bastardy action: “The Appellate Court having exclusive jurisdiction in this class of cases, this case is transferred to the Appellate Court for decision. ’ ’
In Harris v. Howe (1891), 129 Ind. 72, 27 N. E. 561, this court held, in ordering the case transferred: “We are of the opinion that the cause is within the exclusive jurisdiction of the Appellate Court.” The same holding was made in Courtney v. Courtney (1891), 129 Ind. 272, 29 N. E. 1056.
In Williams v. Citizens Enterprise Co. (1899), 153 Ind. 496, 55 N. E. 425, it was held by Baker, J.: “This action is for the recovery of a money judgment only, and the amount in controversy does not exceed $3,500. The Appellate Court, therefore, has exclusive jurisdiction of this appeal.” In each of the above cases, this court decided that the Appellate Court was one of last resort, and that its jurisdiction was exclusive; and in each case, the constitutional question was presented for determination no less than it is here. The Federal courts have followed the opinions of our Appellate Court, as one of last resort. In Troy Wagon Works Co. v. Hancock (1906), 152 Fed. 605, 81 C. C. A. 595, the United States Circuit Court of Appeals, Seventh District, it was held in an opinion by G-rosscup, J., that that court was bound by the opinion of our Appellate Court, in West v. Fulling (1905), 36 Ind. App. 617, 76 N. E. 325, though evidently deemed erroneous. The court said: “Under the statute creating the Indiana Appellate Court (See. 10, Indiana Acts 1901 p. 567), it is provided that *126the jurisdiction of the Appellate Court shall be final, except in the event that the case is transferred to the Supreme Court.”
It must be borne in mind that when created, and for ten years thereafter, no jurisdiction was conferred on the Appellate Court except that which was final and exclusive. Hundreds of cases — in fact a large per cent of appealable ones — have erroneously been brought to this court, when, under the Appellate Court act, they belonged in the other. This court, generally on its own motion, has transferred such eases to the proper court without delivering any opinion. The constitutional existence of the Appellant Court •was by necessary implication, involved in the act of transferrring each case, for this court, and this court only, had the constitutional right to finally review the causes, if the Appellate Court was without such right.
There is no better evidence of one’s good character than the fact that it was never questioned. Is it not also true that where a court has been in existence twenty-two years, and has determined finally about 8,000 cases, and its constitutional existence has only been twice questioned by litigants (Branson v. Studabaker, supra, and Newman v. Gates, supra) and, when questioned, determined in favor of the validity of the act of its creation, that all doubts should be deemed as set at rest? During the first ten years of its existence, when the Appellate Court was one of exclusive final jurisdiction, practically all of the leading lawyers of the State practiced before it, including such distinguished ones as Joseph E. McDonald, John M. Butler, John T. Dye and hundreds of others of almost equal eminence. Practically every judge of this court for the last twenty years, including all the present members thereof, practiced regularly before the Appellate Court from 1891 to 1901. Of course all lawyers, with extended practice, lost one or more cases appealed to the Appellate Court during that period, yet none of them (except in the two cases mentioned) ap*127pear to have doubted the validity of the Appellate Court act. .Any lawyer who entertained any doubt about the validity of the Appellate Court act, from 1891 to 1901, would, when his client’s cause was decided against him by the Appellate Court, have been guilty of gross dereliction of duty, by failing to offer his services in testing the validity of the act. That there was no test, (except the two cases mentioned) is conclusive proof that the lawyers of Indiana never doubted the validity of the act; and surely the opinions of the thousands of eminent lawyers who have represented clients in the Appellate Court, are worthy of some consideration. Ve have here, therefore, several cases where this court, in written opinions has affirmed the validity of the Appellate Court act of 1891; we know that in hundreds of other cases this court, by necessary implication, reached the same conclusion; we have a practical construction of the act, by the lawyers and litigants of the State; and after a lapse of twenty-two years, we awaken to the discovery that all the judges, lawyers and people of the State have all this time been mistaken about the meaning of the Constitution; that the Appellate Court had no constitutional existence previous to 1901; and, if the reasoning in the prevailing opinion shall be carried to its logical conclusion, it has had no constitutional existence since.
It is difficult to conceive of the consequence of the ruling. Prom 1891 to 1901 the Appellate Court determined about 4,000 cases. If the act of its creation was invalid, its judgments were, and are, absolutely void. Norton v. Shelby Co., 118 U. S. 425, 6 Sup. Ct. 1121, 30 L. Ed. 178; In re Norton, 64 Kan. 842, 68 Pac. 639, 91 Am. St. 255; State, ex rel. v. Mount (1898), 151 Ind. 679, 51 N. E. 417, 52 N. E. 407; State, ex rel. v. Friedley (1893), 135 Ind. 119, 34 N. E. 872, 21 L. R. A. 634. There may be such a thing as a de facto officer of a valid office, but there is no such thing as a de facto court. As said in State, ex rel. v. Mount, supra, “In order that there be a judge, there must be a *128court.” Nor is that all. The law grants appeals from practically all judgments of nisi prius courts. The appeal requires a review of the record on its merits. If the Appellate Court cannot determine these cases finally, the Supreme Court must, and it must hand down an opinion in each case decided. §5, Art. 7, Constitution of Indiana. All appealable cases must, under the prevailing opinion, be reviewed on their merits by this court, for if the Appellate Court is not one of last resort, litigants have a right to a review of the record, and an opinion thereon, by this court. It can never be held that this court may rightly deny a petition to transfer, except on the theory that the Appellate Court is one of last resort. Indeed the language of the act of 1901 would admit of no such construction, but were it otherwise, a theory that the legislature may limit the right of review by the mere existence of error in the opinion of an intermediate court, would directly conflict with other provisions of our Constitution. Clause 3, §22, Art. 4, and §23, Art. 1, Constitution of Indiana. Classification is justifiable only when based on some reason inherent in the subject-matter of the legislation. To attempt to give to a class of litigants the right of review by this court, of judgments where the Appellate Court made an erroneous declaration of law, and deny it to another class (ninety-five per cent) where there may be no such declaration, would be entirely without reason. It is sufficient to say that the act of 1901 makes no such attempt. It excludes a review by this court, of approximately ninety-five per cent of the cases appealed to the Appellate Court, because, as believed by the General Assembly, and as repeatedly held by this court, the General Assembly lawfully constituted the Appellate Court as one of last resort; if not, the act of 1901 is also invalid.
There are now pending before the two courts probably 1000 appeals. About 600 new causes arrive annually. It is evident that this court cannot get time to hear merely the oral arguments in all appealable cases. With the Ap*129pellate Court sitting in two divisions, (the equivalent of two courts) the eleven judges of the two courts have failed to dispose of the accumulating business since 1901. Everyone knows that at no time in the last forty years has one court been able to dispose of all appealable cases, and we know that thirty-two years ago, because of that fact, the people of Indiana amended their Constitution, so that the legislature might be left free to grant the necessary relief. Yet, under this reasoning, if carried into effect, the administration of justice, in the appellate department, will be practically paralyzed.
If the act of 1913 be considered as a matter of first impression, with nothing but the wording of the Constitution as a guide, it must be held valid, because there is no constitutional limitation on the power of the General Assembly tó pass the act. If it be considered in the light of judicial decisions of this court the same result is reached, as shown by the repeated declarations of this court heretofore cited, relative to the original act creating the Appellate Court; for it must not be forgotten that the act of 1913 varies in no substantial particular from that of the original act of 1891, as amended in 1893. If it be considered in the light of the decisions of the Supreme Court, of the United States, commencing with Clarke v. Bazadone (1803), 1 Cranch *212, 2 L. Ed. 85, which decided that, under the constitution of the United States (after which ours was modeled), it was for the legislative department of the government to determine what courts shall be given jurisdiction to finally determine appealable cases, and ever since adhered to by that court, for 110 years, the act must be held valid.
If it be considered in the light of decisions of courts of other states, with similar constitutional provisions (which most of them have) the same result is reached. Most of these states have been confronted with the same problem that Indiana has met — the physical impossibility of dispos*130ing of all appealable cases by one court — and they have solved the problem by creating tribunals similar to our Appellate Court, and such legislative action has always been upheld as constitutional. People v. Richmond (1891), 16 Colo. 274, 26 Pac. 929, and cases cited; Sharpe v. Robertson (1849), 5 Gratt. (Va.) 518.
Note. — Reported in 102 N. 15. 497, 502, 504. See, also, under (1) 2 Oyc. 507, 517; (2) 8 Cyc. 740; (8) 11 Cye. 659; (4) 2 Cyc. 508; (5) 2 Cyc. 509; (6) 2 Cyc. 507, 509, 517; (7) 11 Cyc. 70(1 816; (8) 11 Cye. 706; (9) 8 Cyc. 830, 857; (10) l'l Cye. 700, 710.It is presumed that legislatures in enacting laws, and the people in adopting constitutions, do not contemplate absurdity as a consequence of their actions, and therefore in construing constitutions or statutes, a construction involving absurd consequences should be avoided. Is not the consequence absurd here, when we know that the very object of' creating a judicial department of the government was to secure a speedy administration of approximate justice; that more than thirty-two years ago the people discovered that one court was no longer able to dispose of appeals, and removed the constitutional impediment by the most important amendment made to our Constitution since 1851; that the purpose of the amendment was to permit just such a court as was created in 1891; that the validity of the creation of such court has stood a practical construction of twenty-two .years, and a judicial one for the same length of time ?
In my judgment the act of 1913 is a valid enactment and should not be overthrown by any mere technical definitions of words found in the Constitution, when it is perfectly apparent what was intended by the people in adopting and amending it.
Cox, J., concurs in this opinion.