Dissenting Opinions.
Nicholls, O. J.While the framers of the Constitution in dealing with the powers of this court fixed its appellate jurisdiction with extreme care, limiting and controlling it within minutely defined boundaries, they, for reasons which to them were deemed sufficient, placed no restrictions whatever upon its supervisory jurisdiction over inferior courts. A broader and more comprehensive grant of power could not well be imagined. When the court as organized under the present Constitution met, thus invested with plenary authority over the subject, it found itself confronted with the danger of being overwhelmed by applications from suitors from every tribunal in the State calling and seeking for relief for supposed wrongs received at the hands of the inferior courts. Self-protection suggested that the court should map out some course of conduct by which, while exercising its powers, it should do so - on certain general lines.
The court therefore through Mr. Justice Levy as its organ announced its intention so to do in the case of State ex rel. Sinnott vs. Falls, 32 An. 555. In reference to Art. 90 of the Constitution conferring supervisory control on the Supreme Court over inferior courts it said: “ It gives control and general supervision over all inferior courts and grants the power to issue certain writs without any-qualification or limitation limiting the exercise of that power to eases, in which it may have appellate jurisdiction. The use of this power-must then be regulated¡by the discretion of the court, and here it maybe well to remark that we think the control and general supervision over inferior courts addressed to our sound discretion should be most carefully administered and exercised only in cases where there is a flagrant usurpation of authority or where serious injury may accrue to parties to whom no other remedies are afforded or where the intermediate courts are without power to grant relief. Under such circumstances alone will this court be' disposed to use this discretionary power.”
In the case of State ex rel. Pugh vs. Judge, 33 An. 1390, the court spoke approvingly of the reservation made in the Sinnott *794case of its power in dealing with exceptional cases, saying: “ We prudently made an express reserve of cases in which urgent considerations of public policy might demand our interference.” In State ex rel. Murray, 36 An. 578, this court said: “ In the exercise of the supervisory powers vested in this court by the present Constitution, relief can be allowed in cases of denial of justice in which, under previous Constitutions, none could be awarded. The writ (mandamus) may issue at the discretion of the court, where the law has assigned no adequate relief by the ordinary means, and where justice and reason require that some mode should exist of redressing a wrong or an abuse of any nature. Also, even where a party has some other means of relief, if the slowness of ordinary legal forms is likely to produce such' a delay that the administration of justice may suffer.” In the body of the opinion the court said: “ So that if there be a remedy, it is not an adequate one, and if a party entitled to an injunction is refused the same he remains with a right without a remedy, at the mercy of a District Judge, unless the court can interfere and relieve him from the effect of a denial of justice.” In that particular case the court said: “ No doubt an appeal lies, but if termed suspensive, it is barren of effect.” * * * “It does not follow, however,” said the court, “ that because this court has such power to interpose its authority in cases of emergency and denials of justice, it will thus interfere whatever be the case presented. It will issue the writ in its discretion according to the exceptional .features of each case presented.”
The court has never gone so far in adopting a general line of conduct as to say that it looked to the articles of the Code of Practice either for the source of its powers or for limitations upon these powers. It has simply utilized and referred to particular articles of the Code of Practice as furnishing safe, conservative guides for its general action. The court has, on the contrary, recognized its absolute power over the whole subject matter. It has acted or refused to act as individual cases were submitted to it, or as they called or did not call, in the exercise of discretion under an unquestionable power, for exceptional relief There will be no difficulty whatever in producing to this court decision after decision of its own that it will not grant relief under its supervisory powers unless the applicant has exhausted his legal remedies in the lower court — that it will not grant relief if the party has a remedy by appeal; but these d icisions are *795nothing more than announcements in the particular cases that they presented no special features under or through which to invoke a departure by the court from its general line of conduct. • One of the ■troubles of its adopting such a general course is that in the progress of time the various decisions are supposed to crystalize substantially ■intolaws absolutely and inflexibly controlling the court in its action. Already we hear it said that if such or such a decision were rendered it would overturn the jurisprudence of the State, and so, decisions rendered under a system adopted simply to furnish suitable rules for the orderly administration of justice and for safeguarding the court against being overwhelmed with unreasonable applications have come to be regarded as absolutely tieing the hands of the court in proper cases. I think it not ■only proper but necessary that this court should from time to time ■exert this power of reserved action lest suitors and judges should, under these discretionary decisions of the court, successfully come to ■be able to work wrong and injury without adequate prompt remedy. My views on this subject I announced almost immediately after I ■came upon the bench. They will be found declared in the cases of State ex rel. Rocchi vs. Judge, 45 An. 544; 46 An. 164; State ex rel. Lehman vs. Judge et al. I am fixed in the opinion that this court should, uutrammeled by mere discretionary precedents of its own, be left free to carry out and enforce in exceptional cases its power and duty of keeping inferior tribunals not only inside of their jurisdiction, but from abdicating their jurisdiction. The question here is not •as to the correctness or incorrectness of the judge’s judgment or ruling touching a change of venue — that question can not possibly be reached or be determined by us on a separate substantive appeal from it by detaching it from its proper place as part of the proceedings in which it was made and by attempting to bring a criminal action piecemeal before us. The question before us is as to the order ■of appeal itself. There is no appeal by the State from that order. Unless the State can be relieved through this court it has forcibly to stay all proceedings until the appeal can be brought up and ■the appeal dismissed. All that a suitor seeking time would have to do, under such a practice as this, would be just on the eve of trial to take some motion in the case, have it overruled, appeal from it suspensively and force the case over without a remedy on the part ■of the State to the next term of the court or possibly longer. The *796right of the State to ask a dismissal of the appeal when the appeal should come up is not an adequate remedy. Before the case could be brought up and disposed of it might have lost its place on the docket, and it would have on account of an appeal to be indefinitely postponed. The State can not be forced into such a position through a clear, illegal and “flagrant” not “assumption of,” but “ abdication of ” jurisdiction by the District Jndge.
There is and could possibly be no difference of opinion among the members of this court as to the power of this court to entertain jurisdiction to review, as a matter of separata appeal, an order of a District Judge overruling temporarily an application for a change of venue with a right reserved to renew the application later. That proposition is outside of the range of debate. If this court is without power to take jurisdiction, the court below was powerless to abdicate jurisdiction. The case of the State vs. Maurice J. Hart is now, in spite of the order of appeal, pending in the Criminal District Court. An absolutely null order is supposed by the judge to stand in the way of a trial — and will have that effect unless brushed away. The State has asked us to do so, as the District Judge declares he is unable to do so, on the ground that the order vested this court with jurisdiction. That position is totally unfounded. We have no jurisdiction. The Criminal District Court has, and should be made to proceed. State ex rel. Chism & Boyd vs. Judge, 34 An. 1177. Weexercised our discretionary power of supervising control in the State ex rel. Bruilette vs. Judge, 45 An. 243. One single exercise of that power completely overturns the theory predicated upon our being inflexibly controlled by precedents of our own. I repeat here what I said in the Rocchi case that though the error of the District Judge may have been an error of judgment, it was not one of such a character as that which is referred to in the general use of that term as applied to prohibition, certiorari and mandamus, and as not forming properly matters for correction through those remedies. The error here is not in respect to the regularity of the proceeding or the facts of the case, but as to the power of the court — an error on that point I think it is our duty to rectify. * * * One of the principal reasons for granting this court supervisory control was to settle questions involving the power and jurisdiction of courts.” I am not called on to know what effect this particular order of appeal will have upon a prompt trial of the ease in the District Oourt. The District Attorney *797evidently thought it would work improper delay; had he not thought so he would not have invoked our powers. It is enough for me to know that the State has asked at our hands that an absolutely null order which blocks and stays all proceedings below until set aside should be, at once, disposed of and the case be permitted to take its legal and proper course.
I think the relief asked for should be accorded.
Bbbaux, J.The defendant applied for a change of venue; after a legal hearing before the court, presided over by the respondent. The application was not granted; the court, in the order refusing to grant the change of venue, reserved to defendant the right to renew his motion on the examination' of jurors upon their voir dire.
The ease was assigned for trial. The defendant moved for an appeal from the order denying a change of venue.
The motion was granted.
The relator prays for an order directing the trial j udge to .vacate the order of appeal and reinstate the case.
The respondent returns that the order of appeal was lawful, and that he is divested of jurisdiction for the time being; chat his action is not reviewable in the proceedings here; that the facts and the law on the application for a change of venue arereviewable, and if he has committed an error the remedy is by motion to dismiss the appeal.
With reference to the first ground:
I agree, in a criminal case, the proceedings in the court of the first instance are superseded and arrested for the time being, but must add by an order of appeal, though it may be voidable.
But if the order is absolutely null and void it should not have the effect of bringing the court to a standstill until the case is reach ed on appeal.
The questions are, in the first place, is the order void; in the second place, is the remedy to set it aside within the supervisory jurisdiction of this court?
The following precedents are pertinent and affirmatively answer the first question:
“On general principles, an appeal from an interlocutory order or judgment in criminal matters does not lie.”
“ An appeal in criminal matters is regulated by the common law *798rules of practice, except when modified by our own statutes, and1 the common law practice in criminal trials does not know such a proceeding as an appeal from an order (or judgment, if you will)' overruling a plea which does not determine the case.” State vs. Wilkins, 37 An. 62.
Again, the right of appeal in a criminal case arises after verdict' and sentence, and not from questions not disposing of the merits of the cause. Ex parte Mitchell, 1 An. 413; State vs. May, 9 An. 69; State vs. Pratt, 9 An. 157; State vs. Johnson, 36 An. 306.
In State ex rel. Cook vs. Keeper, 15 An. 347, the question is treated as jurisdictional, and it was held that there must be a final judgment before an appeal can be taken.
Mr. Wharton, under Sec. 775 of his book on Criminal Pleading, of “ error” says: “It does not lie till after judgment. It is essential to the just administration of penal law.”
The purpose of the order of appeal is to enable one to obtain a. hearing before the court of appeals. When it is manifest that under no circumstances the court has jurisdiction it must follow that the order granting the appeal is absolutely null.
It is obvious that under the law and in accordance with the authorities, this application on appeal can not be heard at the period in the proceedings at which the order was granted.
A motion for the want of jurisdiction may be made at any time for the reason that the proceedings in that case are absolutely null.
If this court is without jurisdiction the order of appeal should not hinder and obstruct the jurisdiction of the court of the first instance.
“Cases may be supposed in which a remedy (mandamus) would be proper and warranted by analogy. Some instances are mentioned in the cases cited, as where a judicial tribunal declines taking cognizance of a case within its proper jurisdiction.” Moses on Mandamus, p. 51.
Having thus concluded in regard to the nullity of the order of appeal, the second question arises, can the remaining issue be determined by this court under its supervisory powers?
At the time that, to this court, was given the “ control and general supervision over all inferior courts ” it had been settled, at common law, that if anything occurred in the proceedings of the court of the first instance “differing from the regular course of the common law ” the writ of certiorari was a remedy.
*799Shortly after the present Oonstitution had been adopted, in regard to the functions of that writ and of the writ of mandamus the interpretation was, as I appreciate, in accord with the common law.
From State ex rel. Pugh vs. Judge, 33 An. 1381-1391, I quote: “It issues at the discretion of the court, even where the party has other means of relief.” See also State ex rel. Judge, 32 An. 549, 552; State ex rel. Murray vs. Judge, 36 An. 578, 583; State ex rel. Lehman vs. Judge, 46 An. 175.
In the case of the State ex rel. Brouillette vs. Judge, 45 An. 243, the District Court had granted a change of venue. This court annulled the order and reinstated the case; although there was a possibility of a hearing on appeal from the sentence or of a hearing in the exercise of our supervisory control if the sentence had been for less than the appellate amouut.
The relator was not compelled to resort to an appeal; his grounds of nullity of the order changing the venue were considered and relief granted in the exercise of the supervisory jurisdiction of this court.
The State should not be forced to await the action of an appellant in order that it may have opportunity to have declared null an order which is absolutely null.
I therefore dissent.