Curless v. Watson

Erwin, J.

An action was brought in the Grant Circuit Court by appellee against appellants to foreclose a street improvement lien, and on change of venue was transferred to the Wells Circuit Court. From a judgment for plaintiff, appellants prosecuted an appeal to the Appellate Court, which affirmed the judgment. Curless v. Watson (1913), 54 Ind. App. 110, 100 N. E. 576. A petition for rehearing was filed and overruled, and appellants thereupon prepared a petition, in all respects conforming to the provisions of subd. 2, §10 of the act of 1901, providing for the transfer of causes from the Appellate Court. Acts 1901 p. 565, §1394 Burns 1908, subd. 2. Appellants presented this petition for filing, to the clerk of this court within thirty days after the petition for rehearing had been overruled by the Appellate Court.

At the 1913 session of the General Assembly, an act was passed purporting, among other things, to repeal §10 of the act of 1901, supra. Acts 1913 p. 454. This act went into effect March 10, 1913. Appellant contends that the act of 1913, in so far as it purports to repeal the transfer act, is unconstitutional and void. This cause presents to this court two principal propositions. (1) Is the act of 1913 (Acts 1913 p. 454) within the power of the legislature to enact? (2) Is the legislature authorized to create a court with power over appeals from inferior courts, such as is, by the Constitution, lodged in the Supreme Court? Many briefs have been filed in this cause by appellants, appellee and friend of the court, in which the right of appeal, the jurisdiction of the Supreme Court in appeals, the right to appeal from the Appellate Court to this court, and the constitutional authority of the legislature to limit, by regulations and restrictions, the right to appeal, are discussed.

The Constitution of this State declares that “The judicial power of the state shall be vested in a supreme court, in circuit courts, and in such other courts as the general assembly may establish.” §1, Art. 7, Constitution of Indiana (As amended March 14, 1881). “The supreme court shall consist of not less than three, nor more than five judges,” etc. §2, Art. 7, Constitution of Indiana. “The supreme court shall have jurisdiction, eo-extensive with the limits of the state in appeals and writs of error, under such regulations and restrictions as may be prescribed by law. It shall also have such original jurisdiction as the general assembly may confer.” §4, Art. 7, Constitution of Indiana.

1.

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. Amacher v. Johnson (1910), 174 Ind. 249, 253, 91 N. E. 928, and cases cited; Sullvan v. Haug (1890), 82 Mich. 548, 46 N. W. 795, 10 L. R. A. 263; Lake Eric, etc., R. Co. v. Watkins (1902), 157 Ind. 600, 605, 62 N. E. 443, and cases cited; Randolph v. City of Indianapolis (1909), 172 Ind. 510, 88 N. E. 949; Barnes v. Wagener (1907), 169 Ind. 511, 82 N. E. 1037; Brown v. Brown (1907), 168 Ind. 654, 80 N. E. 535; Evansville, etc., R. Co. v. City of Terre Haute (1903), 161 Ind. 26, 67 N. E. 686; Kepler v. Rinehart (1904), 162 Ind. 504, 70 N. E. 806; Board, etc. v. Albright (1907), 168 Ind. 564, 81 N. E. 578; Hughes v. Parker (1897), 148 Ind. 692, 48 N. E. 243; Newman v. Gates (1898), 150 Ind. 59, 49 N. E. 826; Sims v. Hines (1890), 121 Ind. 534, 23 N. E. 515; Rupert v. Martz (1888), 116 Ind. 72, 18 N. E. 381; Branson v. Studabaker (1892), 133 Ind. 147, 33 N. E. 98; Board, etc. v. Davis (1894), 136 Ind. 503, 36 N. E. 141, 22 L. R. A. 515; Ex parte Sweeney (1891), 126 Ind. 583, 27 N. E. 127; Brown v. Porter (1871), 37 Ind. 206; State v. Vierling (1870), 33 Ind. 99; Board, etc. v. Lease (1864), 22 Ind. 261; Board, etc. v. Brown (1860), 14 Ind. 191, 193; Hornberger v. State (1854), 5 Ind. 300; Clarke v. Bazadone (1803), 1 Cranch *212, 2 L. Ed. 85, 95; Durousseau v. United States (1810), 6 Cranch. *307, 3 L. Ed. 232; Daniels v. Rock Island R. Co. (1865), 3 Wall. 250, 18 L. Ed. 224; Ex parte McCardle (1869), 7 Wall. 506, 19 L. Ed. 264.

2.

At the time of the adoption of our present Constitution, “appeals” and “writs of error” were well understood by the Constitutional Convention, when it fixed the jurisdiction of the Supreme Court, as being; the right to correct the judgment of an inferior court by appeals in equity causes, and by writs of error in other cases; and in the adoption of the Constitution, employed the terms, as they then existed. Cooley, Const. Dim. (5th ed.) 47; Durham v. State, ex rel. (1889), 117 Ind. 477, 19 N. E. 327; State, ex rel. v. Noble (1889), 118 Ind. 350, 361, 21 N. E. 244, 4 L. R. A. 101, 10 Am. St. 143. “It is also a very reasonable rule that a state constitution shall be understood and construed in the light and by the assistance of the common law, and with the fact in view that its rules are still in force. By this we do not mean that the common law is to control the constitution, or that the latter is to be warped and perverted in its meaning in order that no inroads, or as few as possible, may be made in the system of common-law rules, but only that for its definitions we are to draw from that great fountain, and that in judging what it means, we are to keep in mind that it is not the beginning of law for the State, but that it assumes the existence of a well-understood system which is still to remain in force and be administered, but under such limitations and restrictions as that instrument imposes.” Cooley, Const. Lim. (5th ed.) 73. See, also, Durham v. State, ex rel., supra. Judge Elliott, in State, ex rel. v. Noble, supra, on page 361, quotes with approval from Webster as follows: “Written constitutions sanctify and confirm great principles, but the latter are prior in existence to the former.”

3.

4.

5.

6.

There can be no misunderstanding as to the term “jurisdiction”, therefore it is useless to explain what is meant thereby, except to say that it is the legal right by which judges exercise their authority. When the Constitution was adopted, jurisdiction had a definite meaning, and was understood to relate to authority. In §4, Art. 7, of our Constitution the Supreme Court was given jurisdiction over appeals and writs of error (our italics). “Writs of error” had a definite meaning then, and has yet, viz., “A writ authorizing an appeal from an inferior court, assigning error in the proceedings as relating only to matters of law, arising upon the face of the proceedings, so that no evidence is required to substantiate or support it.” The Constitution authorizes the legislature to make such regulations and restrictions as it might see fit, §4, Art. 7, supra. This the legislature has done from time to time by providing rules as to the transfer of cases from other courts to the Supreme Court, and this takes the place of the Constitutional “appeals” and “writs of error.” The question presented to the court in this ease is, “Has the writ of error been abolished in this state ? ’ ’ This question cannot be important for the reason that onr statutory appeal takes its place, and makes full provisions for the transfer of cases to this court, in every ease, which the legislature has thought proper to he reviewed on appeal. It makes no difference in what manner a case may be transferred for review so long as the legislature, under its power to regulate and restrict “appeals” and “writs of error” has made some provision. The real question is, not how appeals may reach a higher court, but, what court, or what tribunal shall have final jurisdiction in appeals and writs of error? It is well settled that where the power to issue writs, has been fixed by the Constitution, in a certain tribunal, the legislature cannot divest that tribunal of that power. Harrison v. Tradee (1871), 27 Ark. 59; Martin v. Simpkins (1894), 20 Colo. 438, 442, 38 Pac. 1092; People v. Richmond (1891), 16 Colo. 274, 282, 283, 26 Pac. 929. The legislature has a right to call the writ of error “an appeal”, or “certiorari,” and provide the manner and condition of taking the appeal to the Supreme Court, but when that is done its powers and duties are at an end.

7.

If the legislature has the constitutional authority to vest the Appellate Court with final jurisdiction in appeals, the question of what appeals, or in what cases, the Appellate Court may be given jurisdiction, cannot be questioned by this court. So that the question at issue is not -what cases may be appealed to the Appellate Court, but can the legislature vest the Appellate Court with complete and final jurisdiction to review cases, under appeals or writs of error, without being subjected tO' review by the Supreme Court? If this is answered in the affirmative, then how far it may go*, or where it must stop is not a matter for the courts, unless the Constitution fixes the limit. The eonstitu- • tional provision (§4, Art. 7) supra,) as to the jurisdiction of the Supreme Court in appeals and writs of error, as completely vests that power in the Supreme Court, as §1, Art. 7, supra, vests the judicial power in the courts. Section 4 is just as clear and definite as §1, and nobody has ever questioned but that the judicial power is vested in the courts, and in no other tribunal. The Constitution vests the judicial power, in every instance, from all courts, in appeals and writs of error, in the Supreme Court, excluding none, and fixes its limitations coextensive with the State. §4, Art. 7, supra.

8.

It is a well-settled principle of law, that where one tribunal is vested with a certain power, or jurisdiction, it is to the exclusion of all others, and that, if certain power is conferred by the Constitution on the Supreme Court, it follows that no other tribunal can be vested with the same power. Butler v. State (1884), 97 Ind. 373, and eases cited; Sterling v. Drake (1876), 29 Ohio St. 457, 23 Am. Rep. 762; State v. Nichols (1870), 26 Ark. 74, 7 Am. Rep. 660; Shoultz v. McPheeters (1881), 79 Ind. 373; Gregory v. State, ex rel. (1884), 94 Ind. 384, 48 Am. Rep. 162; Little v. State (1883), 90 Ind. 338, 46 Am. Rep. 224; Pressley v. Lamb (1886), 105 Ind. 171, 4 N. E. 682. In the case of Butler v. State, supra, the question under discussion was the constitutional power to grant pardons and reprieves. Section 17, Art. 5, of our Constitution, in defining the powers of the Governor, reads as follows: “He shall have the power to grant reprieves, commutations and pardons * * * subject to such regulations as may be provided by law.” The court in Butler v. State, supra, 375, said, “There is no express provision of the Constitution providing for the exercise of these powers by any person charged with official duties under the legislative or judicial department. The conclusion seems to be inevitable that in this State the Governor, under such regulations as may be provided by law, has the exclusive power to grant pardons, reprieves and commutations, and .to remit fines or forfeitures. It follows that any legislative enactment which attempts to clothe the courts, or any of the courts, of this State with these powers, or any of them, is void as being in conflict with the fundamental law. * # # The law is well settled that constitutional restraints are overstepped where one department of the government attempts to exercise powers exclusively delegated to another” and cites Wright v. Defrees (1856), 8 Ind. 298; Waldo v. Wallace (1859), 12 Ind. 569; Trustee, etc, v. Ellis (1871), 38 Ind. 3, 8; Columbus, etc., R. Co. v. Board, etc. (1879), 65 Ind. 427. It has never been contended by any one, since the above opinion was written, that the legislature could take from the Governor, the jurisdiction to grant pardons, because it is a power which the Constitution has vested in him. The constitutional provision, as to the power of the Governor, in granting pardons, is “under such regulations as may be provided by law,” while in the provision as to the Supreme Court, having jurisdiction of appeals and writs of error, it is written “under such regulations and restrictions as may be prescribed by law. ’ ’

9.

The duty imposed upon a department of government, must be performed by the chosen officers of that department, and it cannot be delegated or surrendered. State, ex rel. v. Noble, supra; Cooley, Const. Lim. (5th ed.) 138. In speaking of the constitutional powers of the Governor, Judge Cooley uses this language, “The matters which the constitution specifically confides to him, the Legislature cannot directly or indirectly take from his control.” Cooley, Const. Lim. (5th ed.) 138. The same author says, “That such powers as are specially conferred by the constitution upon the governor, or upon any other specified officer, the legislature cannot require, or authorize, to be performed by any other officer or authority,” Cooley, Const. Lim. (5th ed.) 136.

It has been suggested that the cases of Clarke v. Bazadone, supra; Durousseau v. United States, supra; Daniels v. Rock Island R. Co., supra; Ex parte McCardle, supra; and Sharpe v. Robertson (1849), 5 Gratt. (Va.) 518; and Forsyth v. Hammond (1897), 166 U. S. 506, 17 Sup. Ct. 665, 41 L. Ed. 1095, are decisive of the question now before this court. The last ease cited was one involving the right to create a circuit court of appeals in the various districts of the United States. There is a marked difference between the Constitution of the United States and our Constitution, in this, the Constitution of the United States in granting appellate jurisdiction to the Supreme Court uses this language, “In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party, the Supreme Court shall have original jurisdiction (our italics). In all other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions (our italics) and under such regulations as the Congress shall make.” Our Constitution makes no exceptions in granting appellate jurisdiction to the Supreme Court. It reads as follows: “The Supreme Court shall have jurisdiction coextensive with the limits of the state in appeals and writs of error, under such regulations and restrictions as may be prescribed by law.” The jurisdiction of the Supreme Court of the United States, over those subjects which the Constitution gives it original jurisdiction, has never been questioned, because that power has been irrevocably fixed in that court, and can be taken away, only, by an amendment to the Constitution.

In the case of Sharpe v. Robertson, supra, a diff stitution from ours was being considered. The constitution of Virginia, while it vested no particular judicial power in the court of appeals, left the creation of the courts, and the fixing of their power in the legislature. This decision contains a quotation from Justice Marshall in the constitutional convention as follows: “The article leaves the whole subject open to the Legislature. They may limit or abridge the jurisdiction of all the courts as they please. ’ ’ The constitution of Virginia on that subject reads as follows: “ ‘The judicial power shall be vested in a supreme court of appeals, in such superior courts as the legislature may from time to time ordain and establish, and the judges thereof, in the county courts and in justices of the peace. * * . * The jurisdiction of these tribunals, and the judges thereof, shall be regulated by law.’ * * * ‘It was thus made the duty of the legislature to create a supreme court of appeals * * * This duty being performed, the tribunal so constituted stood in the judicial system as the supreme court of appeals, contemplated by the Constitution, with the capacity to receive such appropriate jurisdiction as the legislature thought proper, from timé to time, to confer upon it.’ ” Dissenting opinion Ex parte France (1911), 176 Ind. 72, 130, 95 N. E. 515, 536.

In the case of Daniels v. Rock Island R. Co., supra, the Supreme Court, has stated the rule clearly and concisely as follows: “To come properly before us, the ease must be within the appellate jurisdiction of this court. In order to create such jurisdiction in any case, two things must concur: the constitution must give the capacity to take it, and an act of Congress must supply the requisite authority. The original jimsdiction of this court, and its power to receive appellate jurisdiction, are created and defined by the Constitution ; and the legislative department of the government can enlarge neither the one nor the other. But it is for Congress to determine how far, within the limits of the capacity of this court to take, appellate jurisdiction shall be given, and when conferred, it can be exercised only to the extent and in the manner prescribed by law. In these respects it is wholly the creature of legislation.” (Our italics.)

7.

In our State, the Constitution fixes the jurisdiction of appeals and writs of error in the Supreme Court, and in no other tribunal; and provides it shall consist of not less than three, nor more than five judges, and the legislature has no more authority, to confer final power and authority over appeals, in some other tribunal than it would have to increase the membership of this court to ten, a thing nobody concedes. The right to confer jurisdiction, in any particular case, is in the legislature, but the power to receive it is fixed by the Constitution in the Supreme Court, and the legislature has no right to vest any other tribunal with authority to take final jurisdiction in appeals and writs of error; that is “To review errors of law arising upon the face of the proceedings, so that no evidence is required to substantiate or support it,” which is a power fixed by the Constitution in the Supreme Court. In State, ex rel. v. Nolle, supra, Elliott, C. J., after quoting numerous authorities concludes as follows: “The Constitution vests the judicial power in every instance, and the Legislature in none. The Legislature has no judicial power, and can confer none upon any person or tribunal. Under the Constitution it may establish courts, but it does not invest the courts with judicial power; the Constitution alone can do that, for all judicial power comes from that instrument and is vested by it in courts and judges.”

It is insisted that the case of Branson v. Studabaker (1892), 133 Ind. 147, 33 N. E. 98, is decisive of this case. In that case the question of the constitutional right to create the Appellate Court and confer appellate jurisdiction upon it, was not discussed, or decided by the court, but as was stated in the ease, page 151: ‘ ‘ The contention of the appellee’s counsel that the act creating the Appellate Court is unconstitutional in so far as it regulates practice in the courts by providing for the transfer of cases from one docket to the other, because such a provision is special legislation upon a subject where general legislation is required by the Constitution, cannot prevail. ’ ’

10.

The question as to whether the legislature may vest the Appellate Court, with final jurisdiction in appeals and writs of error, has never heretofore been presented to this court, and this court has never been called upon to decide it. It may be urged that as §1, Art. 7, declares that ‘1 The judicial powers of the state shall be vested in a supreme court, in circuit courts and other courts as the general assembly may establish,” authorizes the legislature to create an Appellate Court, with powers inferior to the Supreme Court, or even with like powers. But without an amendment taking the power to control appeals and writs of error away from the Supreme Court, that power could not be conferred upon any other tribunal. If the legislature is authorized, by this section of the Constitution, to create certain other courts, it could not be authorized to grant to other courts a jurisdiction wholly in the Supreme Court, fixed so, by a positive declaration of the Constitution. The legislature can, within its constitutional authority, confer only that power not already conferred by the Constitution.

In the section of the Constitution, referring to circuit courts, there is this provision, as follows: “The circuit court shall consist of one judge, and shall have such civil and criminal jurisdiction as may be prescribed by law. ” §8, Art. 7, Constitution. In the section relating to justices of the peace, the Constitution provides, “They shall continue in office four years and their powers and duties shall be prescribed by law.” In these last two sections mentioned, it was intended that the legislature should fix the jurisdiction of circuit courts and justices of the peace; and if the same provision had been intended, by the framers of the Constitution, as to the jurisdiction of the Supreme Court, they would have so expressed it. It is contended that the power to regulate and restrict the Supreme Court, in appeals, gives the legislature the right to take away the final jurisdiction of appeals, and bestow it upon whomsoever it may see fit. “Restriction” as defined by Webster, is the act of restricting, confining or limiting; the state of being restricted, limited or confined within bounds. “Regulation” is defined, by the same authority, as the act of regulating; the act of reducing to order or of disposing in accordance with rule or established custom; a rule, order or direction from a superior or competent authority; a governing or prescribing a course of action. And while the legislature may withhold from this court jurisdiction in certain cases, it cannot confer final jurisdiction upon any other tribunal “To hear and determine the questions of law arising upon the face of the record without any evidence to substantiate it,” and make its actions final. While the legislature may regulate and restrict the Supreme Court, as to how it may take jurisdiction, it cannot take away from the court the jurisdiction over this particular subject, granted by the Constitution, and bestow it upon any other tribunal, and a legislative enactment, which seeks to do so is contrary to the Constitution. The legislature has the undoubted right to regulate appeals, but the power to regulate does not give authority to take away, or bestow it upon another tribunal.

The only ground upon which the creation of the Appellate Court can be constitutionally justified is, that jurisdiction may be conferred upon it to determine such eases as the legislature may designate, subject to the constitutional power vested in the Supreme Court to review its action, either upon writs of error or certiorari, as an inherent power under the Constitution, which even the legislature cannot take away. The provision for transfer in effect takes the place of the common-law writ of error; not a, writ of right, as is the writ of error, but a right is given by the provision for transfer, which under the power to regulate appeals, the legislature may make.

It was evidently the intention of the legislature, that the transfer clause of the act of 1901 should perform the office of the writ of certiorari and writ of error, and with the provision as to transfer, the act of 1901 is not obnoxious to the Constitution, and is a saving clause, but for which, it cannot be justified, and the repeal of it by an unconstitutional act did not affect it, unless it be to restore writs of error, or appeals, or both, the jurisdiction of which is solely in the Supreme Court, and strike down the act creating the Appellate Court entirely; and we should give it a construction which will uphold it as far as we can, which the provision for transfer does, without rendering it obnoxious to the Constitution. As the act of 1913 expressly repeals the transfer provision it is therefore void in that particular, and as it would not have been passed without that provision the entire act must fail.

There being no error in the judgment of the Appellate Court in this cause, the petition to transfer is denied.

Morris and Cox, JJ., dissent.