Ex parte Louisville & Nashville R. R.

MAYFIELD, J.

1 concur in the conclusion of the majority, and in most all that is said in the opinion of Justice Anderson/ but desire to add the following:

A more important question could not well be presented to this court than the one here presented — the ques*655tion of the extent of the poiver of this court to review and control the judgments and decisions of the Court of Appeals. All agree that under the Constitution of this state there can be but one Supreme Court. This is necessary to insure uniformity of decisions. If there were, or could be, two or more independent supreme courts, a diversity of judgments and decisions would necessarily arise, both as to the limits of the jurisdiction of each court, and as to the fundamental doctrines of constitutional, civil, and criminal law. The effect would be to have a different rule promulgated as to all of the most important subjects of litigation by these several tribunals. The people would be involved in endless doubt as to both their rights and their public duties. The Constitution itself as was said by Judge Story, would be made to speak a different language, according to the tribunal which was called upon to expound it, and thus indeterminate disputes would embarrass the administration of justice throughout the land. The Constitution, however, authorizes the creation of several kinds of inferior courts, such as circuit courts, chancery courts, and probate courts, and it authorizes the clothing of each of such courts with both original and appellate jurisdiction; but it wisely provides that all of these inferior courts, whether they be of constitutional or statutory creation whether clothed with original or appellate jurisdiction, shall be under the jurisdiction, “supervision and control” of the Supreme Court. This is necessary to preserve uniformity in the decisions of these inferior courts, and to keep them within the proper limits of their respective jurisdictions and powers. Without one common court, supreme to all, these courts would of necessity establish contradictory rules of adjudication, and these contradictions would be final and without remedy; but this *656one common, superior, appellate, and revisory jurisdiction tends to prevent or to put an end to this confusion.

Very soon after the Supreme Court of the United States was established, and soon after the President of the United States had appointed the justices to preside over that court, he addressed to them the following letter : “United States, April 3rd, 1790. Gentlemen: I have always been persuaded that the stability and success of the national government, and consequently the happiness of the people of the United States would depend, in a considerable degree, on the interpretation of its laws. In my opinion, therefore, it is important that the judiciary system should not only be independent in its operations, but as perfect as possible in its formation. As you are about to commence your first circuit, and many things may occur in such an unexplored field which it would be useful should he known, 1 think it proper to acquaint you, that it will be agreeable to me to receive such information and remarks on this subject as you shall from time to time judge it expedient to make. Geo. Washington. The Chief Justice and Associate Justices of the Supreme Court of the United States.” The. reply to this letter is too long to be here set out, but is in part as follows: “It has long and very naturally been deemed essential to the due administration of justice, that some national court or council should be instituted, or authorized to examine the acts of the ordinary tribunals, and ultimately to affirm or reverse their judgments and decrees; it being important that these tribunals should be confined to the limits of their respective jurisdiction, and that they should uniformly interpret and apply the law in the same sense and manner. The appellate jurisdiction of the Supreme Court enables it to confine inferior courts to their proper limits, to correct their involuntary errors, and, in *657general, to provide that justice be administered accurately. impartially, and uniformly. These controlling powers were unavoidably great and extensive, and of such a nature as to render their being combined with other judicial powers in the same persons unadvisable.” —2 Story on the Constitution, 401, 402.

It was said by Ellsworth, the second Chief Justice of the United States Supreme Court, in speaking of the jurisdiction and power of that court, in the case of Wiscart v. Dauchy, 3 Dall. 321, 1 L. Ed. 619, as follows : “The Constitution, distributing the judicial power of the United States, vests in the Supreme Court' an original as well as an appellate-jurisdiction. The original jurisdiction, however, is confined to cases affecting ambassadors, other public ministers, and consuls, and those in which a state shall be a party. In all other cases only an appellate jurisdiction is given to the court, and even the appellate jurisdiction is, likewise,' qualified, inasmuch as it is given ‘with such exceptions, and under such regulations, as Congress shall make.’ Here the]] is the ground, and the only ground, on which we 'can sustain an appeal. If Congress has provided no rule to regulate our proceedings, we cannot exercise an appellate jurisdiction; and, if the rule is provided, we cannot depart from it. The question, therefore, on the constitutional point of an appellate jurisdiction, is simply whether Congress has established any rule for regulating its exei’cise.” Chief Justice Marshall, in the famous case of Marbury v. Madison, 1 Cranch, 175, 2 L. Ed. 60, in speaking of the power of the court to award mandamus io compel Mr. Madison, avIio was then Secretary of State, to issue and deliver to Mi*. Mar-bury a commission to an office to which he had been appointed by the President of the United States, said: “To enable this court, then, to issue a mandamus, it *658must be shown to be an exercise of appellate jurisdiction, or to be necessary to enable them to exercise appellate jurisdiction. It has been stated at the bar that the appellate jurisdiction may be exercised in a variety of forms, and, that if it be the will of the Legislature that a mandamus should be used for that purpose that will must be obeyed. This is true, yet the jurisdiction must be appellate, not original. It is the essential criterion of appellate jurisdiction that it revises and corrects the proceedings in a cause already instituted, and does not create that cause. Although, therefore, a mandamus may be directed to courts, yet to issue such a writ to an officer for the delivery of a paper is in effect the same as to sustain an original action for that paper, and therefore seems not to belong to appellate, but to original, jurisdiction. Neither is it necessary to enable the court to exercise in such a case as this its appellate jurisdiction. The authority, therefore, given to the Supreme Court by the act establishing the judicial courts of the United States to issue writs of mandamus to public officers appears not to be warranted by the Constitution.”

While the provision in our Constitution is, of course, somewhat different from the corresponding provision in the Constitution of the United States, yet it has been frequently held by this court that our Constitution was in a measure modeled after that of the United States, and the decisions of the Supreme Court of the United States construing provisions of that Constitution have been largely followed by state courts in construing similar provisions in their Constitutions. I understand the meaning of our Constitution, as to the jursdiction and powers of the Supreme Court, to be as follows: That the Supreme Court shall have no original jurisdiction except in the particular cases expressly provided for in *659the Constitution itself. Among the cases, if not the only cases wherein such original jurisdiction is conferred, are those of impeachment of certain officers, designated in the Constitution, power to institute and prosecute proceedings in which is vested in this court. The jurisdiction in such case is both original and conclusive. The Constitution provides, however, that the Supreme Court shall have appellate jurisdiction coextensive with the state, except where jurisdiction over appeals is vested in some inferior court and made final therein. Such a court is the Court of Appeals which was established by the last session of the Legislature.

This court, in line with the Supreme Court of the United States, has frenquently decided that the Legislature may control the appellate jurisdiction, but not the original jurisdiction, of the Supreme Court. The original jurisdiction is, and can be, conferred alone by the Constitution; but the right of appeal being a statutory right can be conferred or taken away by statute, and hence the right to an appeal to the Supreme Court is by the Constitution itself placed under the restrictions and regulations of the Legislature,'which however, must not be repugnant to the Constitution. Our Constitution, however, contains a provision not found in the federal Constitution, being in form a proviso to section 140, which confers both original and appellate jurisdiction, and which authorizes the creation of other appellate courts, whose judgments and decisions are made final. This proviso unquestionably relates both to the powers and to the jurisdiction of the Supreme Court, and to those of such appellate courts as may be created under this provision of the Constitution. This proviso reads as follows: “Provided, that the Supreme Court shall have power to issue writs of injunction, habeas corpus, (¡uo warranto, and such other remedial and original *660writs as may be necessary to give it a general superintendence and control of inferior jurisdictions.” I take it tliat there can be no doubt that by this provision it was the intention of the Constitution makers to confer upon the Supreme Court powers which cannot be taken away by the Legislature. There is, however, some conflict in the decisions of this court as to whether this provision confers original, or appellate, jurisdiction. The same conflict occurs in the decisions of courts of other states as to corresponding provisions in their respective Constitutions. Many of these decisions are referred to in a note in 51 L. R. A. pp. 1-100.

To my mind, it is wholly immaterial whether it be considered as conferring original, or appellate, jurisdiction. The proviso declares it is for the purpose only of giving the Supreme Court the power, by means of these common-law writs, whether they be original or remedial, to super intend and control inferior jurisdictions. The power of super'ntendence and control being thus conferred by the Constitution itself, the means and mode by which it is to be exercised of necessity resides within the discretion of the court. Under this proviso of the Constitution, my opinion is that if every statute of this referring to or regulating the rights of appeal to the Supreme Court to the Court of Appeals, or to any other court, should be repealed or wiped off the statute books, this court would still have the power to revise, superintend, and control the judgments and decisions of all inferior courts, including the Court of Appeals. I can see no reason why this court, under this proviso, has not the same power, the same right, and the same duty to superintend and control the judgments and decisions of the Court of Appeals that it has to control the judgments and decisions of the circuit, chancery, and other inferior courts. But this court *661lias uniformly held that it Avill not exercise the poAver conferred under this proviso as to judgments or proceedings in inferior courts Avhere adequate remedy has been othenvi.se provided, as by appeal to this court, or to some other court, unless such other court fails or refuses to grant the relief and remedy Avhich the law allows. On the other hand, in the absence of any statutory right of appeal, this court has uniformly granted relief by the exercise of the power conferred by this provision of the Constitution. Consequently, as the statute creating the Court of Appeals very properly (as is authorized by the Constitution) provides for no appeal or Avrit of error (except on one condition) from the judgments and decisions of that court, resort must be had to the proviso for all remedies and relief against such judgments and decisions. While both the Constitution authorizing the creation of this court, and the statute creating it, provide that its judgments and decisions shall be final, it does not folloAv that such judgments and decisions are not subject to the superintendence and control of the Supreme Court, under this proviso, for the reason that this court never did, and never will, exercise that poAver, unless the judgment or order sought to be revised is final. It is the finality alone of the judgment, decree, or order from Avhich relief is sought that can call into exercise the poAvers conferred by the proviso.

In my opinion a different conclusion cannot be reached Avithout disregarding both the letter and the spirit of the Constitution and the statute. Judgments, decrees, and decisions of the Court of Appeals are no more final than the final judgments or decrees of the circuit, chancery, or other inferior court, in the absence of a statute authorizing an appeal from or revieAV of such judgments or decisions. Consequently it is clear that *662this .court has the same jurisdiction and the same power to superintend and control-the judgments, decrees, and decisions of the ,Court of Appeals (no more, no less) that it has to superintend and control the decrees and judgments of the circuit.and.chancery courts., in the absence .of statutes providing for appeals from or revisions of such judgments. If the Supreme Court cannot award a common-law writ of certiorari to the Court of Appeals to revise its judgments and decrees, then it cannot, for the same reason, award the like writs to the circuit, chancery, and other inferior courts. A construction of the Constitution which will limit or restrict the powers of the Supreme Court to revise, superintend, or control the judgments and decrees of the Court of Appeals must, for the same reason, restrict or limit the powers of the Supreme Court to revise, superintend, or control the judgments and decrees of other inferior courts, in the absence of statutes providing for appeals from, and revisions of, such judgments and decrees.

It is admitted by all that the common law of England, together with the English statutes in operation at the time of the emigration of our ancestors to America, became operative and of force in our institutions, provided such laws and statutes were not inconsistent with our governmental system. Hence the common law of England, and such statutory laws, constitute a part of the common law of Alabama, and are in force, and have always been in force, here, unless repealed by our Constitutions and statutes. Therefore the common law of England and the statutory laws referred to form the source, of our common law, and in a large measure form the models after which our Constitutions, institutions, and statutes are formed. It is, I. think, beyond doubt that it was the purpose of our Constitution makers, in establishing the Supreme Court of Alabama, to confer *663upon it the same corresponding and relative powers that the Court of the King’s Bench of England had with regard to the inferior English courts. It was therefore the object and purpose of section 140 of the Constitution to confer upon the Supreme Court of Alabama the same supervisory control over the inferior courts, whether of constitutional or of statutory creation, which the Court of the King’s Bench exercised over the inferior English courts. It was the evident purpose of the Constitution makers in placing this proviso, to prevent the Legislature from conferring this supervisory control upon any other court that it might create. This is made evident by reason of the fact that the proviso directs that the Supreme Court shall have power to issue writs of injunction, habeas corpus, quo warranto, and such other original and remedial writs as may be necessary to give it a general supervision and control of all inferior jurisdictions. These writs mentioned specifically and referred to as a class under the English law were denominated prerogative writs, sometimes “crown offices,” and sometimes “flowers of the crown.” The phrases, “supervision and control,” “supervisory control,” and “superintending control,” have come down to us from the English decisions, and from Colonial charters, and have thus become a part of our Constitutions. By the English law the Court of the King’s Bench had jurisdiction to correct all manner of errors of all the judges and justices of the realm in their judgments, process, and proceedings in courts of record, as well as in all other judicial proceedings, and even those which were extrajudicial, which tended to a breach of the peace, oppression of the subject or other manner of misgovernment. By this means it was intended that no wrong or injury, public or private, could be done, which could *664not be reformed or punished in one court or another by due process of Irav.

Such, I believe, AA7as the purpose and intention of the proviso of our Constitution, now under consideration, and which distinguishes it from the Constitution of the United States. In England these prerogative Avrits could be issued only by the King’s bench, which court liad jurisdiction and poAver to keep all inferior courts Avithin the bounds of their authority, and to this end it could remove their proceedings to the King’s Bench for determination or prohibit their further progress in the inferior court. It superintended all civil and criminal proceedings. It commanded magistrates and others to do that which their duty required, where there AAras no other specific remedy. It was thus said to protect the liberty of the subject by a speedy and summary interposition. It issued these prerogative Avrits in the name of the king, and from the Court of the King’s Bench, to enforce obedience to the acts of Parliament and to the King’s Charter. These writs were called prerogative Avrits to distinguish them from ordinary writs Avhicli belonged to all courts of justice. They were not originally considered as judicial proceedings, but Avere exercised as prerogative powers. The Court of the King’s Bench, therefore, not only had poAver in judicial things, but in some things Avhich were extrajudicial. According to the theory of the English Constitution, the king is the fountain of all justice, and, Avhere the laAvs do not afford a remedy enabling the subject to obtain his rights by ordinary forms of judicial proceedings, these prerogative writs and the poAvers of the sovereign Avere brought into play in order to aid the regular judicial powers to attain and preserve the law. While the king does not now sit in these courts in person, yet, in his sovereign capacity, he is still there *665in tlie contemplation of the law, so far as to enable the court to exercise these prerogative powers which reside in the king alone, and can be exercised only in his name. Under the English law this power to issue such writs was not incident to any court which did not possess the general superintending power, but only to a court in which the sovereign himself might, by construction of law, he supposed to sit and exercise these prerogative powers, in aid of the court, in order that no right might he without a remedy.

It is certain, therefore, that it was both the purpose and the effect of this proviso of our Constitution to vest in the Supreme Court these prerogative powers which were exercised, and could be exercised, only by the Court of the King’s Bench. • While our Constitution and statutes authorize other courts to issue some, if not all, of these prerogative writs, the Constitution was careful to guard this grant of power by the proviso in question, that the Supreme Court should ever have the power finally to issue any or all of these writs, Avhether original or remedial, if necessary to give it a general superintendence and control over all inferior jurisdictions. It Avas therefore the object and purpose of this proAiso that the one Supreme Court established by the Constitution should have a superintending poAver, jurisdiction, and control OArer all inferior courts or jurisdictions, and that, by virtue of this proviso, it could issue all these Avrits mentioned, or others of like kind and .character, and thus supply a remedy Avhen the ordinary forms of statutory proceedings were inadequate to the attainment of uniform justice in matters of public or private concern.

It is contended by some that, as the Constitution expressly authorizes the Legislature to create inferior appellate jurisdiction in certain cases, this prevents, and *666was intended to prevent, the Supreme Court from controllings superintending, or revising the judgments, decrees, or proceedings of the Courts of Appeals so created. The complete and conclusive answer to this contention is that the proviso.in question immediately follows the clause which authorizes the creation of such courts with final appellate jurisdiction. If the proviso does not apply to this inferior appellate court the jurisdiction of which is made final, it cannot apply to any other inferior court more remotely mentioned in the Constitution. The fact that the appellate jurisdiction of the Court of. Appeals is made final tends rather to show that it is within, than without, the proviso, for the reason that the Supreme Court will never exercise the power conferred by the proviso, if any other power or remedy is obtainable in this, or any other, court. The judgment, decree, order, or action against which relief is sought must be final, beyond correction or remedy, by appeal or any other process or power of this or any other court, save the power vested in the Supreme Court by virtue of the proviso. To illustrate: The act creating the Court of Appeals provides that in case the constitutionality of a statute is assailed, and the statute is upheld by that court, the party assailing the constitutionality of the statute can have the decision reviewed in this court by a writ of error. In this particular case the statute provides a mode of review, and it is therefore not necessary to resort to the proviso for power to review, revise, or superintend the decision of the Court of Appeals therein. If an appeal or writ of error was. allowed by statute as to all judgments, .decisions, and actions of the Court of Appeals, then the proviso of the Constitution would not apply to it, because not necessary to give this court the superintendence and control of its proceedings. It is the lark of any other remedy .or. relief *667against errors of this appellate court .which calls into exercise the powers conferred by the proviso-of the Constitution.

,. I cannot concur in the conclusion that .the extent of the power of this court to superintend and control, the proceedings in the appellate ..court is mandamus, to start it, and prohibition, to stop-it, ánd to supervise it only when it decides contrary to former decisions ol this court. Neither the Constitution nor- reason fixes any such limitations. This court has the same constitutional power to superintend and control the Court of Appeals that it has to control any other inferior court, no more and no less. The Constitution confers the power and it makes no exceptions. No court is presumed to make laws, but to construe them; and, if the inferior appellate court should construe a law erroneously, the duty and the power of this court would be equally as great to correct this wrongful decision, whether the question had never theretofore been decided by this court or whether it had been repeatedly decided. It is both illogical and unreasonable to say that citizens may be deprived of their rights and property contrary to the law, unless the questions of law by which they are so deprived have been decided by this court; and yet concede them no right to have those questions decided by this court. Such would be the necessary effect of the holding that this court can revise the erroneous decisions of inferior courts only when this court has heretofore decided the same questions.

. An appeal is a creature.of the statute, and may be destroyed by the statute; but the power to revise and control inferior courts is conferred by the Constitution, and hence cannot be .taken away by the Legislature. An appeal is the continuation, in an appellate court, of a proceeding begun in a nisi prius. court. A writ of *668certiorari, prohibition, etc., is the institution of a new suit in a superior court, but for the purpose of revising and controlling the judgment or decision of some inferior court, jurisdiction, or tribunal. Appeal had its origin in the civil law, while these other writs mentioned in the proviso under discussion had their origin in the common law. It has always been a rule of both English and American law that courts will never issue any of these writs, whether original or remedial, if there is any other adequate and expedient remedy by appeal or otherwise. They have always been treated as dernier resorts, and so have they been treated by this court iu construing this proviso of the Constitution. This court has always declined to issue any of these writs if the relief sought could be obtained by appeal or resort to any other inferior court until such inferior court had failed or refused to award the relief allowed by May. The Constitution has thus placed that part of the sovereign prerogative of the states within the power and discretion of the Supreme Court which it has established.

It is true that the reasons for the exclusiwe jurisdiction to issue these prerogative writs in the Court of the King’s Bench do not exist under our American form of government; and hence, if the power resides in one court alone, it is because the Constitution will not alIoav it to be placed elsewhere. Our Constitution has not reposed in the Supreme Court the sole poAver to issue these Avrits, but has authorized other courts to issue them, and contains no inhibition against the Legislature’s creating inferior courts with authority to issue such AArrits; but by means of this proviso it does provide that the Supreme Court alone by means of such Avrits shall have a general superintendence and control over all inferior jurisdictions, not only as to the issuance *669of such writs, but as to any other judicial proceeding. Acting under these provisions, this court has uniformly held, when its attention -was directed specially to.the proviso, that it would not issue the writs in relation to matters of which any other court had jurisdiction, except when necessary to give it a general supervision and control of some inferior jurisdiction, and that it would not award the writ for the purpose of coercing action by the clerk or officer of the inferior court, when there existed an appropriate remedy by application to some other court, and that this being a case within the supervisory jurisdiction of the court, by virtue of the proviso, it must be shown whether that court.or a judge of some court invested with authority to act in the premises had decided erroneously upon the case presented, or had without just cause refused to act in the premises.

There is a long line .of these cases, beginning with the first of our reported cases among which are those appearing in State v. Flinn, Minor, 8; Ex parte Simonton, 9 Port. 383; Ex parte Mansony, 1 Ala. 98; State ex rel. Attorney General v. Williams, 1 Ala. 342; Ex parte Floyd, 40 Ala. 116; Ex parte Pearson, 76 Ala. 521; Ex parte Grant, 6 Ala. 91; State ex rel. Attorney General v. Porter, 1 Ala. 688; Ex parte Pickett, 24 Ala. 91. Many others are shown by annotations to section 5955 of the Code, which is the statute attempting to .define the jurisdiction conferred upon the Supreme Court by virtue of the Constitution and the statutes. It is true that there are sporadic cases which may be found in the reports of the decisions of this court, and which are referred to in the Digest and in the annotations to the section of the Code mentioned, in which this court has in some cases issued these extraordinary writs to- inferior courts or to the officers thereof, when "a similar power has been vested, by the Constitution and the stat*670utes, in some other inferior court, such as the circuit court or the chancery court, without first applying to such inferior court; but it has been repeatedly pointed out by this court that such judgments and decisions passed sub silentio, without the attention of the court being called to the point. The truth is that the court has the power to issue such writs in all cases to any inferior court, but the court has correctly decided and determined that it will not do so, if the party can obtain the relief sought by application to some other court, thus conforming, as far as may be, to the provision of the Constitution that the jurisdiction of this court shall be appellate only — that is, revisory — except in cases otherwise directed in the Constitution.

There is no doubt in my mind — in fact, this court has so decided — that the court does have the inherent power, under the proviso, to issue these original writs to any inferior court, even to a probate judge or a justice of the peace, álthough a Circuit court or a chan eery court could afford the same relief; but it is eminently proper that the court should not do so if the relief can be had otherwise, thus conforming its jurisdiction and powers to the revision of actions and proceedings of other and inferior jurisdictions.

It must be conceded, however, that there is a conflict in the decisions of this court, as well as in those of other state courts, as. to whether this power or jurisdiction exercised by the Supreme Court under the proviso in question is original or appellate. To my mind it is clearly either or both, if necessary to give it the general superintendence and control of inferior jurisdictions. This conflict of decisions may be seen by reference to the various decisions construing this proviso. Two in which the conflict is made very acute are Ex parte Pickett, 24 Ala. 91, and Ex parte Giles, 133 Ala. 211, *67132 South. 167. Iu the former, through Ohiltou, O. J., the court said: “We have had some difficulty as respect the jurisdiction of this court of original applications like this (ivhich ivas to issue a mandamus io compel the speaker of the house of representatives to certify an act to the comptroller of the state treasury) ; but as the facts set forth in the petition, and which are admitted by the speaker, very clearly show that, if the petitioner have any other remedy, which is questionable, that remedy may be thwarted, we have determined, under the peculiar circumstances of the case, to entertain jurisdiction of the motion.” In the case of Ex parte Giles, which was an application to issue mandamus to the board of registrars of Montgomery county to compel the board to register the petitioner as an elector, this court, through McClellan, O. J., said: “The Supreme Court has no jurisdiction of the proceeding. It is not appellate jurisdiction that is invoked, and the matter is not within the very limited original jurisdiction of this court ‘to issue writs of injunction, etc.’ ” — quoting from the proviso, and concluding,that: “A board of registrars is not one of the ‘jurisdictions’ ivhich this court may control by original writs. And, if it were, yet it can never be ‘necessary’ for this court to control such board by any original writ, since whatever writs may under any circumstances be proper or necessary * * * may be and can only be issued by nisi prius courts,” etc. Upon an examination of the decisions of this court, it will be found that the jurisdiction exercised by this court under this proviso is often spoken of as appellate or revisory only, and often referred to as original jurisdiction. It is, however, wholly immaterial whether it he classed as original or appellate. Both the power and the jurisdiction are unquestionably granted if necessary to the general superintendence and control of *672inferior jurisdictions. Whether original or appellate is important only in case the proceedings should he attempted to he regulated by statute. Then, and then only, Avould it become important. If the proviso be considered as conferring original jurisdiction, Avithin the meaning of the exception which forms the first sentence in section 140 of the Constitution, reading as folloAArs: “Except in cases otherwise directed in this Constitution, the Supreme Court shall have appellate jurisdiction only, Avhich shall be coextensive with the state” — then, of course, the Legislature could not confer any other or greater jurisdiction or power than is conferred by that proviso; but, if the proviso be considered as conferring appellate jurisdiction only, then it would be by the very terms of the statute, under such restrictions and regulations, not repugnant to the Constitution, as may from time to time he prescribed -by bnv. This court at a very early period, in line Avith the decisions of the Supreme Court of the United States, in the case of State v. Flinn, Minor 9, decided that the Legislature had no power under this .provision of the Constitution to direct that .an original motion in the Supreme Court could be had against a delinquent’tax collector, holding that the case did not come Avithin the exceptions mentioned in the Constitution, and that the act in question, AAdiich required the motion to be made before the Saapreme Court Avithout directing any original proceeding-before any other jurisdiction in order to bring the case to the Supreme Court, Avas repugnant to the section of the Constitution referred to, and Aroid.

It clearly appeal’s, therefore, that the Legislafrire may by statute provide and regulate the appellate power of the Supreme Court, AAdiich is thus expressly placed under such regulations as are not repugnant to the Constitution itself; but that as to original jurisdiction *673it can neither confer, enlarge, nor take away, nor can it curtail or take away, the power or jurisdiction of the Supreme Court to superintend and control all inferior jurisdictions by means of the extraordinary writs included in the proviso of section 140' of the Constituton. That it cannot be taken away by the creation of an appellate court whose jurisdiction over appeals is final would seem to be certain. If this were not so, why should the proviso, as to the superintendence and control of inferior jurisdictions, have followed the clause in the Constitution which authorized the creation of a court of appeals, the jurisdiction of -which is made final? If such inferior courts had been intended to be excepted from this proviso, would not the clause of the Constitution authorizing such courts have followed or been made a part of the proviso, rather than that the proviso should follow immediately after the clause conferring the power upon the Legislature to create such appellate courts? It would seem that the relative positions which this clause and this proviso occupy in the Constitution would render it beyond question that the Supreme Court has the same power, no more, no less, to revise the judgments and decrees-of such inferior courts, as it would have to revise those of any nisi prius, or other inferior court. Why any distinction should be made between the power of this court, under the Constitution, to superintend and control the proceedings in appellate courts, and the power to revise and control those in other inferior courts, I am wholly unable to understand. It would seem, under the uniform decisions .of this court, that the reason for exercising such superintendence and control over the appellate court is rendered stronger by the fact that no appeal is provided for from that court to this court, as in proceedings in the circuit court, chancery court, and other inferior courts. Why *674the extent of this power should he different, or why any different mode of procedure resorted to, in revising the proceeding's of the one, than in the other, I am unable to understand, provided the error in each be the same. That there is, and can be, but one Supreme Court in this state, and that the Legislature cannot interfere with, or take away, the constitutional powers and jurisdiction granted to this court, was announced in a very early decision of this court, that of Lewis v. Lewis, Minor, 38, which, of course, referred to the Constitution of 1819; and in that case it was said: “If there can be but one Supreme Court of appellate jurisdiction coextensive with the state, all other jurisdictions must be inferior. Any other courts now established, or which can hereafter be established under the Constitution, whether courts of-common law or courts of chancery, are and will be inferior. The concluding clause of the second section [Const. 1819, art. 5] gives to the Supreme Court the power of issuing such remedial and original writs as may be necessary to give it a general superintendence and control over inferior jurisdictions. The convention then intended that this court, however organized, or by whomsoever held, should alone be supreme, that all other jurisdictions in the state should he inferior to it, and that it should generally suprintend, control, and limit them within their proper spheres.” This same doctrine was again very clearly, cogently, expressed in the opinion in Mm parte Candeo, 48 Ala. 412, as follows: “Under this section of the Constitution [Const. 1865, art. 6], the Legislature may impose such restrictions and regulations, not repugnant to the Constitution, upon the appellate jurisdiction of this court, but it has no power to limit or prescribe the mode and manner in which it must exercise its power to issue the writs therein named, and such other remedial and *675original writs as may be necessary to give it a general superintendence and control of inferior jurisdictions. If tliey could, the power thus conferred upon this court by the Constitution might be so crippled and embarrassed as to render it worthless for the great and salutary purposes contemplated by the Constitution. This court has the power to adopt its own practice and mode of proceedings, in exercising the powers conferred upon it by the proviso of this section of the Constitution, and to so mold and fashion it, as to fit the exigencies of each particular case.”