(Concurring.) — I. I concur fully in the second paragraph of the learned Chief Justice’s opinion. I also concur in the first paragraph wherein he states that it would be unwise to depart from the rule announced in the recent cases of State ex rel. v. Broaddus, 238 Mo. 189, and Curtis v. Sexton, 252 Mo. 221, but I concur for a different reason from the one assigned by the Chief Justice. I concur for the reason that under the Constitution there can be no doubt about the right of this court to use the writ of certiorari, to quash the record of a Court of Appeals, whenever such court reaches its' *672judgment by refusing or failing to follow tbe last previous ruling of this court upon the doctrine of law or' equity involved in tbe case before such Court of Appeals.
Tbe question suggests a bird’s-eye-view of Missouri’s judicial system. In tbe briefs it is suggested that some of our previous cases were written by judges wbo were members of tbe constitutional convention of 1875, and that they were blessed with lights which we do not have. No man bolds in higher regard tbe distinguished judges wbo have written upon tbe question than tbe writer. This applies to those wbo were not in tbe constitutional convention of 1875 as well as those wbo were. But this is largely by tbe wayside.
Judicial
When tbe Constitution (both tbe original and tbe amended) is read as a whole, it is clear that tbe framers contemplated a judicial system, with one Supreme Court, at tbe bead of that system. It is clear that they contemplated that as to all doctrines of both law and equity there should be •one final arbiter, and that arbiter tbe body which they chose to designate as tbe Supreme Court. It was never •contemplated that one doctrine of law or equity should apply in certain appellate jurisdictions, and another and different doctrine in other appellate jurisdictions. Throughout tbe entire document (both tbe original and amended) runs tbe idea of harmony in tbe law. Not only so, but with this idea is the further one that there has been vested in tbe Supreme Court tbe power to enforce harmony of decision, in so far as they touch upon ■doctrines of law or equity. This is as it should be, be- ■ •cause without a power lodged in some one body, harmony in tbe doctrines of tbe law announced is but an iridescent dream. It is all well enough to say that tbe judges of tbe Court of Appeals are just as conscientious in tbe performance of their duties as are tbe judges of this court (a question cheerfully conceded) and that they will certify cases here when occasion re*673quires it, but that does not answer the question here involved. Judges, like individuals, honestly differ and give different constructions to the same language at times, and discrepancies in announced doctrines will creep in unless there is a power (at the head) somewhere to act as final arbiter. On this question of the right of this court to issue the writ of certiorari in this case I shall confine my remaining remarks.
Supreme Court: . control over certiorari.
II. By the organic law (Art. 3, Constitution of 1875) the powers of government were committed to three separate and distinct magistracies. By the same instrument, article 4, the legislative power, with designated restrictions, was confined to “The General Assembly of the -State of Missouri.” By the same document, section 1, article 5, the executive p0wer was vested in the Governor and other named and designated officers. By article 6 me judicial power “as to matters of law and equity” is vested in the Supreme Court and other specifically designated courts. ■ Section 3 of article 6 says:
“The Supreme Court shall have a general superintending control over all inferior courts. It shall have power to issue writs of habeas corpus, mandamus, quo warranto, certiorari and other original remedial writs, and to hear and determine the same. ’ ’
This is the original section in the Constitution of 1875. By section 12 of the same article the St. Louis Court of Appeals was created and given appellate jurisdiction in all cases within its then territory (city of St. Louis and the counties of St. Charles, Lincoln and Warren), but the decision of that court was not final in the following cases:
“In all cases where the amount in dispute, exclusive of costs, exceeds the sum of two thousand five hun- ' dred dollars; in cases involving the construction of the *674Constitution of the United States or of this State; in cases where the validity of a treaty or statute of or authority exercised under the United States is drawn in question; in cases involving the construction of the revenue laws of this State, or the title to any office under this State; in cases involving title to real estate; in cases where a county or other political subdivision of the State or any State officer is a party, and in all cases of felony.”
As to cases falling within the foregoing class, an appeal would lie to the Supreme Court, or a writ of error would run from this court. This outlines the situation of the courts under the original Constitution of 1875. It should be noted, that up to this time, there was no provision in the Constitution which required the St. Louis Court of Appeals (the only one then created or existing) to follow the rulings of the Supreme Court upon questions of law or equity. It remained for the people by the amendment of 1884 to put in this limitation upon the constitutional power of the St. Louis Court of Appeals. Cases decided prior to the amendment of 1884 can therefore have no real bearing. The distinguished judges of this court, who were members of the Constitutional Convention, did not wrestle with that question, and their views of the question are not, for that reason, founded upon any greater light or insight into the question than we more humble ones who have succeeded them have. The people chose to add to the instrument which was their handiwork, and the question now is to what extent have they added. By section 5 of the amendment of 1884, the Supreme Court was given sole appellate jurisdiction in all the cases specifically named in section 12 of article 6 of the Constitution. Section 6 of the amendment of 1884 thus reads:
“When any one of said Courts of Appeals shall in any cause or proceeding render a decision which any one of the judges therein sitting shall deem contrary *675to any previous decision of any one of said Courts of Appeals, or of the Supreme Court, the said Court of Appeals must, of its own motion, pending the same term and not afterward, certify and transfer said cause or proceeding and the original transcript therein to the Supreme Court, and thereupon the Supreme Court must rehear and determine said cause or proceeding, as in case of jurisdiction obtained by ordinary appellate process; and the last previous rulings of the Supreme Court on any question of law or equity shall, in all cases, be controlling authority in said Courts of Appeals.”
Although by section 3 of article 6, of the original Constitution “a general superintending control over all inferior courts” was given the Supreme Court, yet the constitution-makers in 1884 (the people) were determined to leave no doubt that such court had. superintending control over the Courts of Appeal, and adopted section 8 of the Amendment of 1884, which reads:
“The Supreme Court shall have superintending control over the Courts of Appeals by mandamus, prohibition and certiorari.”
Thus it will be seen that this court is not only given the superintending control of the Court of Appeals, but the Constitution names the writs by which we can exercise this power and one of these writs is the writ of certiorari. Under this power if a Court of Appeals refuses to act, when it should act, we can by mandamus compel it to act. If such a court threatens to act when it has no lawful authority to act, we can by writ of prohibition stop it from acting, and we maintain further, that if such court acts, but in so doing goes beyond its constitutional power, and such is apparent upon the face of its record, then by the other writ of superintending control, i. e., the writ of certiorari, we can have their record certified to this court and quashed.
*676The Constitution (Section 8, Amendment of 1884) says that the Supreme Court “shall have superintending control over the Courts of Appeals by mandamus, prohibition, and certiorari.” Plere is specific authority for the use of the writ of certiorari as against these Courts of Appeals. It was put in there for a purpose. How can you use the writ of certiorari except it be to quash their records, when such records show that in the exercise of the jurisdiction given them they have overstepped the constitutional lines marked out for them? Certiorari brings up for review, it is true, only the record, but this record has been specifically provided for by the Constitution, as will be noted later.
The trouble with the long line of previous cases is, that they emphasize section 6 of the Amendment of 1884, and overlook entirely section 8 of the same amendment. Section 6, it is true, makes provision for the Courts of Appeals to certify cases here, but this is not the exclusive method. Section 8 is the other method, and the one given to this court. The Constitution should be construed so as to give effect to both sections. The construction we give so does,- but the construction of these old cases excludes section 8, supra. Construed as a whole the Constitution gives two remedies: (1) If a judge of the Court of Appeals thinks the decision of his court contrary to the decision of this court, or to a decision of another Court of Appeals, such judge may have the case certified to the Supreme Court; and (2) if the opinion is contrary to the latest ruling of the Supreme Court, and thereby violative of the Constitution, then the Supreme Court may, under section 8, quash the record by first having it brought here by our writ of certiorari. This construction gives full force and effect to all of the Constitution. The opinions in the early cases gave no effect to that part of section 6 which says that the Courts of Appeals must follow our latest rulings, or-section 8, which gives us superintending control by certiorari.
*677By section 15 of article 6, these Courts of Appeals are required to file opinions in writing which,“shall be filed in the cases in which they shall be respectively made, and become parts of their recordSo that by constitutional edict the opinion in the particular case is made a part of the record of the case, and must be certified to this court as such record.
We do not urge the view (because not necessary in this .case) that we can use our writ of certiorari, given by the Constitution as one of the writs of superintending control, for the purpose of an appeal to correct mere errors in the Court of Appeals, but what we do urge is, that if the record of the Court of Ap7 peals shows that it has gone beyond its constitutional powers in any given case, we can quash that entire rec7 ord, because it is one made without jurisdiction or corn stitutional authority. There are at least two classes of error which may be committed by a Court of Appeals,. First, it may err and hold that it has jurisdiction, when under the organic law it has no such jurisdiction. This would be an error of judicial judgment, but no member of this court, at this late day, would hold that this court with its power of superintending control cannot prohibit such court from further proceeding with a cause over which it had erroneously assumed jurisdiction. Again, if such court refused to assume jurisdiction, when the Constitution gave it jurisdiction, such refusal would be an error of judgment, yet it cannot be contended that this court has not the power by the writ of mandamus to compel it to act. In other words the .final arbiter of the jurisdiction of a Court of Appeals is the Supreme Court. They may guess (judicially guess) at the jurisdiction, but the last and final guess upon that question is lodged with this court. So, too, by the writ of certiorari there is another remedy. If upon the face of the whole record (which includes the opinion under the Constitution) it appears that the ■Court of Appeals was without, jurisdiction, in the first *678place, or having jurisdiction in the first place, exceeded its jurisdiction later in the course of determining the case, then this court can quash that record.
In my judgment the error which crept into the opinions relied on by counsel and coming from this court prior to 238 Mo. is that these opinions overlook the constitutional limitation upon a Court of Appeals in deciding a case. If a Court of Appeals in deciding a case fails to follow the last previous ruling of this court upon the doctrine of law or equity involved in its case, the moment such act occurs such court has overstepped its jurisdiction, and is then as much under the superintending control of this court by proper writ as if it had never possessed jurisdiction. The Constitution has created the lines within which- such courts must travel in deciding a case, and when such court oversteps these fixed lines, it is exceeding the jurisdiction granted by the Constitution creating the court. Its act is in excess of constitutional and legal authority, and therefore beyond its power or jurisdiction to do. So after all it is a simple question of jurisdiction or power. A Court of Appeals can’t try a case over which the Constitution gives it no jurisdiction. If it undertakes to do so it proceeds without right, power or jurisdiction, and although such act may be called error, yet it is error affecting jurisdiction, and can be reached by this court under our power of superintending control. Nor can such court decide a case in a way not authorized by the Constitution. The organic law says that the last ruling of this court must be followed by such court. If such court disregards this constitutional provision (whether purposely or otherwise) its act is beyond its constitutional power, right or jurisdiction. As the act has been done, and appears upon the face of the record, the remedy is by our writ ■ of certiorari, by which, in superintending such court, we may quash the record thus made. To do so would be but keeping such court within the jurisdiction conferred upon it by the *679Constitution. It is at this point that the long line of cases hinted at by nay brother stops. Such cases overlook the fact that the very moment one of the Courts of Appeals fails to follow our last ruling, it crosses the line of its fixed jurisdiction or power, and is thereby and thereafter proceeding without right or jurisdiction. It is not a mere error. It is much more. It is error as to jurisdiction or power, and such an error is always subject to review here under the proper writ.
It would he but idle ceremony to say that the Constitution demands of these courts to follow our latest rulings, and yet say there was no power to compel them to regard this constitutional inhibition upon their power. Jurisdiction is but the right or power to hear and determine. It may be limited by the same instrument which grants it. If the limitation is violated the act is as much without right or power as if there had been no grant. The Constitution fixes a pathway of decision for these courts. If they get out of that pathway, they are without constitutional power or jurisdiction.
III. If it be true (and as I understand it, it is contended in these previous cases) that section 6 of the Amendment of 1884 was ordained for the single purpose of providing for the certification of cases up to us by the Courts of Appeals upon their violation solely, why append at all to said section the last two lines, which I italicised supra? These lines read:
“And the last previous rulings of the Supreme Court on any question of law or equity shall, in all cases, be controlling authority in said Courts of Appeals
Obviously, the language used in the first eight lines of the section was sufficient to fix and had already fixed on the Courts of Appeals the duty in the contingency named, of transferring cases up to us, of their volition. The last two lines of this section do *680hot add one feather’s weight to the constitutional command to the Courts of Appeals. • For this section plainly says before these lines are reached, that when the decision of any Court of Appeals is contrary “to any previous decision of . . . the Supreme Court/’ the case wherein the difference occurs shall be sent 'up to us. Eliminate the last clause wholly and the constitutional command to the Courts of Appeals to follow “any previous decision,” i. e., existing and not overruled, and therefore “last previous ruling,” of this court, still remains clearly and unmistakably expressed. If therefore, as contended, the whole of section 6 be but the statement of a duty to be performed by the Courts of Appeals upon their initiative only, why by .useless tautology add the last two lines to that section to express narrbwly a command already fully expressed broadly. In other words, the first eight lines of section 6 of the Amendment of 1884 fully fixed the duty upon the Courts of Appeals to certify cases here, under given contingencies, and the addition of the lines we have requoted above added nothing to that mandate. These last lines clearly impose a new duty, and one that this court can enforce by the power granted under section 8, supra, which empowers this court to superintend those courts by the three writs named.
For these reasons I concur in paragraph one of the opinion. In paragraph two of the opinion I concur fully. The result is that I concur in the result of the opinion, but for different reasons as herein expressed.
Walker, Faris and Blair, ,/</., concur in these views.