concurring:
I concur in the opinion and- order of- my learned associate. However, as the decision in this case reverses *359a number of former decisions of this court, I feel that the question is deserving of some- further comment. This court -in a number of cases has had occasion to say, as other courts have said, that, where a question of law has once been determined, the ruling thereon should not be changed, except for-very weighty and conclusive reasons. Especially is this true where the decision has repeatedly been followed. This rule applies with particular- force to decisions upon mere questions of practice. (Reese M. Co. v. Rye Patch M. Co., 15 Nev. 341; State v. Brown, 30 Nev. 495.)
The question of the power of a district court to dismiss an appeal regularly taken is something more than a question of practice. It is a question of fundamental law. Some extended examination into the decisions of the courts of the various states which have had occasion to consider the question discloses that it has been found to be one that has given rise to much difference of opinion. Not only have the courts of one state disagreed with the courts of another state upon the question, but the opinions of the same court have varied. -Particularly has this been the case in our sister -jurisdiction of California.
In People v. Weston, 28 Cal. 639, the court, by Sawyer, J., in denying a writ of mandamus, held that a dismissal of an appeal from a justice^ court was a judicial act within the jurisdiction of the county court and "its determination, though erroneous, is final.”
In Lewis v. Barclay, 35 Cal. 214, the same question was involved and the ruling the same. See, also, Beguhl v. Swan, 39 Cal. 411.
In Levy v. Superior Court 66 Cal. 292, 5 Pac. 353, Hall v. Superior Court, 68 Cal. 24, 8 Pac. 509, and Carlson v. Superior Court, 70 Cal. 628, 11 Pac. 788, it was held that the superior court could not divest itself of jurisdiction by the erroneous dismissal of an appeal from a justice’s court.
These latter cases were all reversed by the case of Buckley v. Superior Court, 96 Cal. 119, 31 Pac. 8, decided by a divided court. ■ -
*360In the ease of Golden Gate Co. v. Superior Court, 159 Cal. 474, 114 Pac. 978, the Buckley case was reversed. The overruling of the Buckley case has been emphasized by the case of Edwards v. Superior Court, 159 Cal. 710, 115 Pac. 649, and a number of other decisions by the Supreme Court and the Court of Appeals of California. We may, I think, safely conclude that our sister jurisdiction has finally settled the question to its satisfaction.
The Supreme Court of Utah, by a divided court, in the case of Crooks v. District Court, 21 Utah, 98, 59 Pac. 529, followed the Buckley case in 96 Cal., but in the more recent case of Griffin v. Howell, 38 Utah, 357, 113 Pac. 326, it is held that: "A court having conferred upon it jurisdiction may not divest itself of jurisdiction not depending upon facts, by an erroneous decision on matters of law that it has no jurisdiction.” Mandamus was accordingly issued to reinstate an appeal, erroneously dismissed, and to proceed with the cause.
The Supreme Court of Montana, in State v. District Court, 24 Mont. 494, 498, 62 Pac. 820, also followed the Buckley case, but in both prior and subsequent decisions that court has held that mandamus will lie to compel a district court to proceed and try a case, where it has refused to take cognizance of the same under a mistaken view that it was without jurisdiction. (State v. District Court, 38 Mont. 166, 99 Pac. 291, 35 L. R. A. n.s. 1098, 129 Am. St. Rep. 636.)
In State v. Phillips, et al., Judges, 97 Mo. 331, 10 S. W. 855, 3 L. R. A. 476, decided in 1888, the court says: "The same diversity of opinion as to when the action of the lower courts, in dismissing appeals, can be corrected by mandamus is exhibited in England as in this country. These numerous citations of authorities have been made as showing that the rule of law is by no means well settled that the improper dismissal of an appeal cannot be remedied by mandamus. ” * -
The courts have universally held that a mere refusal of an inferior court to proceed ■ with the trial of a case, because of an erroneous view that it was without jurisdiction, could be remedied by mandamus and the court *361compelled to proceed with the trial. Such was the ruling of this court in Cavanaugh v. Wright, 2 Nev. 166, and in Floral Springs Water Co. v. Rives, 14 Nev. 431. The opinion in the latter case was by Chief Justice Beatty, now holding the same high position in the Supreme Court of California. Judge Beatty, both as a member of this court and as a member of the California court, has always held to the position that the dismissal of an appeal regularly taken from a justice’s court was not a judicial act within the jurisdiction of the court, and hence not subject to review, but amounted to nothing more nor less than an attempted abdication of a jurisdiction which the court is bound, in every proper case, to exercise. (Edwards v. Superior Court, supra.)
In the Floral Springs case, supra, relative to the cases of Treadway v. Wright and Cavanaugh v. Wright, supra, Beatty, C. J., said: "Thedecision in Treadway v. Wright, 4 Nev. 119, does not overrule that in Cavanaugh v. Wright, and if it be true that the distinction which it attempts to draw between the two cases is without any substance or validity, what follows is that the latter and not the former decision is wrong. ” Hawley, J., however, in his concurring opinion, expressed the view that both the Cavanaugh and Treadway opinions were correctly decided.
When the case of Andrews v. Cook, 28 Nev. 265, was before this court, we were asked to grant the writ upon the authority of the cases in the 66, 68, and 70 California Reports, cited supra, but upon examination we found those authorities all to have been overruled by the Buckley case in 56 Cal., which case was in line with certain prior decisions of this court, particularly Treadway v. Wright, supra. The decision in the Andrews case has been repeatedly affirmed, but, until the present case, we have not been asked to reconsider the basic question upon which those decisions rest.
The difference in the conclusions reached in the various opinions depends entirely upon the assumption which forms the premise of the opinions in question. If it is assumed that a dismissal of an appeal, regularly taken, is a judicial act within the jurisdiction of the court, the *362conclusion logically follows that the determination of the court is final, notwithstanding - such determination is erroneous as a matter of law. Upon-the other hand, if it is assumed that, when-jurisdiction to proceed and determine a cause is once 'properly vested in a court, it is without power to -divést itself of such jurisdiction, the conclusion likewise logically follows that an order, erroneously made, dismissing -such -an 'appeal, is void, and amounts to no more than a refusal to regularly proceed and determine the cause.
The question then resolves itself down to what is meant' by appellate jurisdiction- or "final appellate jurisdiction,” as that term is used relative to district courts in our constitution. . . -
Jurisdiction has been defined in general terms as: "The authority or power which a man hath to do justice in cause or complaint brought before him; the power of hearing and determining causes and of doing justice in matters of complaint;” 1 (24 Cyc; 3750
It has also been defined as: "The power and authority to declare, the law; the right of administering justice through the laws.” "The term ■ imports authority to expound or apply the laws, and excludes the idea of power to make the laws.” (11 Cyc. 659, 660.)
Many similar'definitions have been given. In Cavanaugh v. Wright, supra, this court said: "We think, as used in the constitution, the phrase'appellate jurisdiction’ * * * was intended to confer - jurisdiction upon the district courts to hear cases on appeal, either in -the strictest sense, which would require a trial de novo, or to review them as law cases are reviewed at common law.”
When an appeal from a justice’s court is taken as the law prescribes, the district court is invested with jurisdiction to proceed and determine the cause upon the issues made by the pleadings. ■ Upon- this point there can be • no question. But has the district court also jurisdiction, where no question of fact is involved, to- say that it has hot jurisdiction when it has and to dismiss the appeal ? If it • has such power, it can • destroy the *363very purpose for which it was created. Jurisdiction is always a matter of law. It may depend on a certain state of facts, but it is the law that flows from such facts which establishes the jurisdiction. It is never a matter of discretion for a court to follow the law or not as it sees fit. It is ever the duty of - courts to apply the law. Necessarily, every act of a court, to be of any binding force, must depend upon jurisdiction, and courts of necessity must determine questions of jurisdiction, but a determination that jurisdiction exists .when, as a matter of law, it does not exist does not ipso facto establish such jurisdiction. , ,
As we said in the recent case of Gamble v. Silver Peak Co., 35 Nev. 326: "It is the primal duty of all courts to keep within their jurisdiction. Whenever a court takes any affirmative action, there is an implied adjudication that it has jurisdiction. ”
Without conflict of authority, it is settled that when an inferior court erroneously determines that it has jurisdiction, its judgments and orders will be set aside by the higher courts. What reason exists for saying that if a court erroneously decides that it has not jurisdiction when it has, and dismisses an appeal for that reason, such decision cannot be disturbed; in other words, for saying that the converse of the rule has no application? The reason given-is that the appellate court has jurisdiction of the case for all purposes, and therefore may dispose of the case by an order of dismissal if in its judgment it is without jurisdiction. The fallacy of this reasoning, I am convinced, lies in the assumption that the appellate court has jurisdiction for all purposes when the constitution and statute prescribe that if an appeal is properly perfected it has jurisdiction only to determine the questions of law or fact involved in the pleadings or record on appeal. Hence justification exists for making no distinction between a mere refusal to proceed with the trial of a case for an erroneous assumption of want of jurisdiction and the dismissal of a case for the same erroneous reason. In other words, a court is without *364power to invest itself with a jurisdiction it does not possess, or to divest itself of a jurisdiction it does possess.