The appellant was indicted in the Circuit Court of Newton County of the crime of forgery. The Circuit Court transferred the case to the County Court of that county, where a trial was had, resulting in his conviction and sentence to the penitentiary for a term of five years. From that judgment the appellant appeals to the Supreme Court, under the authority of chapter 256, Laws of 1932, which expressly authorizes appeals from the county courts to the Supreme Court in such cases. The appellant made a motion in the Supreme Court to transfer the case to the Circuit Court as a court of appeals, basing such action upon the ground that the statute authorizing an appeal direct to the Supreme Court is unconstitutional.
The question presented has already been decided adversely to the appellant's contention as will hereinafter be noted, but if the question were res nova the decision would still have to be that the motion is not well taken and that the act is constitutional.
In the first place, care must be taken that the court shall not enter upon the discussion of public policy in deciding this question. This consideration, when a statute is under review, belongs to the legislature, not to *Page 746 the courts; and, in the second place, care must be taken also not to confuse the superintending power with the appellate power.
The power of a superintending control over inferior tribunals is separate, independent, and distinct from that jurisdiction which is appellate. See Re Phelan, 225 Wis. 314, 274 N.W. 411, as reported in 112 A.L.R. 1345, especially note (b) pp. 1358, 1359, referring to numerous decisions in other jurisdictions so holding. The power of superintendence by a superior court of original jurisdiction over an inferior court exercising similar jurisdiction arises out of the common law, independent of statute, and continues to exist unless and until expressly withdrawn by statute; while, on the other hand, the appellate jurisdiction is solely a creature of statute and exists in no case unless conferred by statute, and then only in the manner and to the extent so conferred, on which latter points see Worley v. Pappas, 161 Miss. 330, 135 So. 348; McClanahan v. O'Donnell,148 Miss. 478; 114 So. 336; Dismukes v. Stokes, 41 Miss. 430; also 3 C.J. pp. 356, 357.
The subject of appeals belongs exclusively to the adjective or procedural side of the law and is a subject upon which the legislature has plenary power, there being no section of the Constitution which expressly limits the legislative power in that respect save only that it is provided that appeals must be allowed from justices' courts. But even there it does not say to what court or courts these appeals may or must be taken. Thus the language found in Dismukes v. Stokes, 41 Miss. pages 430-433, expresses the true and correct rule. There the Court said in part: "For this reason, by universal acquiescence, the power is conceded to the legislature to prescribe the forms of actions and the modes of proceeding in courts, and to limit the cases and the extent to which certain remedies may be pursued. . . . The right to prosecute a writ of error or an appeal in this or any inferior court, is a matter pertaining to the mode of *Page 747 judicial procedure or the remedy. . . . When the legislature has passed laws regulating the mode of proceeding and limiting the cases and the courts in which the right may be exercised, the rules prescribed must be followed, because they are clearly such as the legislature had power to enact. Nothing appears to be more clearly within the legislative power over matters pertaining to public policy, than the question, in what cases and to what courts shall a party be entitled to an appeal or a writ of error?"
It follows, therefore, inescapably, that since the legislature has plenary power over this subject of appeals, it could prescribe that an appeal from this inferior court in this class of cases, or in any other particular class of cases, might be direct to the Supreme Court. If the power of the legislature in this regard is to be restricted or limited, then some section of the Constitution must be pointed to which so limits or restricts the power. As already mentioned, no such section of the Constitution can be found. It is, therefore, a matter solely for the legislature to decide, and the legislature having so decided, the Court is without power to avoid this said legislation.
But, as already said, the point has already been decided by this Court against the contention of appellant. In the act creating the inferior criminal court, dealt with in Thomas v. State, 5 How. 20, the appeals were allowed directly to the highest appellate court, and the very appeal dealt with in that case was direct from the said inferior court to the high court. The act creating the inferior court of chancery dealt with in Houston v. Royston, 7 How. 543, allowed appeals therefrom either to the superior court of chancery or directly to the high court, and the appeal dealt with in that case was direct from the inferior court to the high court. Both acts were sustained and necessarily that part allowing the direct appeals, else the appeals would have had to be dismissed for want of jurisdiction of them. When a court takes *Page 748 jurisdiction, it inescapably decides that it has jurisdiction.
It is true that in the opinions in those two cases nothing was said about the validity of that part of the statute allowing direct appeals from the inferior court to the high court. But it can never be assumed that the distinguished judges who composed the Court at that time were not acquainted with the rule theretofore established as early as Stamps v. Newton, 3 How. 34, that it is the duty of an appellate court to inquire of its own motion, even though the question is not raised by the parties, whether the appellate court has jurisdiction. As said in Mississippi State Highway Department v. Haines, 162 Miss. 216, at page 227: "The Supreme Court in all cases is bound to inquire into its own jurisdiction, and decline to exercise a power not conferred upon it by law. And, if the question of jurisdiction is not raised by either of the parties to a cause, it is the duty of the Supreme Court to raise it of its own motion." As stated by the Supreme Court of the United States in Morris v. Gilmer,129 U.S. 315, 325, 32 L. Ed. 690, 694: "On every writ of error or appeal, the first and fundamental question is that of jurisdiction, first, of this court, and then of the court from which the record comes. This question the court is bound to ask and answer for itself even when not otherwise suggested, and without respect to the relations of the parties to it."
The high court in the two cases above mentioned was theretofore bound, as a fundamental duty, to ask the question and answer for itself whether it had jurisdiction of those appeals. And it did not have jurisdiction unless the statutes allowing the direct appeals to it were valid. When it took jurisdiction and proceeded with the appeals, it necessarily decided what it was bound to decide, namely, that that portion of the statute was valid which conferred the right of such appeal, else, as said, the court could not have done anything else than dismiss *Page 749 the appeal. When a court proceeds to judgment, it necessarily implies a finding by the court that it had jurisdiction, 34 C.J. 925; 3 C.J. 371, 372; also 15 C.J., pp. 851, 852.
The section of the Constitution of 1832, to wit, Section 24 of Article 4, under which those cases were decided, is in the same words as Section 24, Article 6, Constitution of 1868 and Section 172, Constitution of 1890. When the makers of the Constitution in the Convention of 1890 came to examine that section and were bringing it forward into the Constitution as Section 172, and knew, as they are conclusively presumed to have known, that the high court had held that it would take jurisdiction of appeals from an inferior court created under that section, and they did not make any change in its words whatsoever, they thereby authorized the Supreme Court in all future cases of direct appeals from an inferior court to take like jurisdiction; in other words, Section 172 became of the same force and effect as if there had been added the following words — "And appeals from the courts created under this section may be taken direct to the Supreme Court if so prescribed by the Legislature."
As shown by the authorities cited, 12 C.J., p. 717, notes 6 and 9, "The reordainment, in substantial reproduction, of a provision of the organic law, or such re-enactment of a statute, operates the adoption therewith, of the settled construction which the judiciary has placed upon the law. The reason for the rule is that, if it were intended to exclude the previous construction, the legal presumption is that the terms of the provisions would have been so changed as to effect that intent."
It has been argued that inasmuch as the high court did not mention the subject of its jurisdiction, or the question of the direct appeal, it may be considered that it did not pass upon that question. The authorities above cited are distinctly contrary to any such argument, for the court was bound to pass upon the question, as already shown. Therefore, instead of assuming that it did not *Page 750 pass upon the question — which assumption would be that it was oblivious of its duties in the premises — we must rather assume that it considered the question so plain, that the validity of the statute in that respect was so obvious, that it required no discussion of the point.
Ex Parte Tucker, 164 Miss. 20, 21, 143 So. 700, does not stand in the way of what we are deciding in the present case. There was involved in that case the constitutionality of the statute authorizing the Circuit Courts to transfer felony cases to the county courts. The statute was upheld. In discussing the question the Court used this language in part: "It is competent, therefore, to create a court which may be permitted to exercise in full measure the same jurisdiction as the circuit court, so long as the circuit court shall be superior thereto and this attribute of superiority is accomplished by giving the circuit court the controlling authority of reversal, revisal, correction, and direction over the new court, as by certiorari, appeal, etc." The Court did not hold that the constitutionality of the new statute depended on the right of appeal to the Circuit Court, although it used the words "reversal" and "appeal" along with "revisal, correction, and direction." The authority of the Circuit Courts to make such transfers to the county courts is itself supervisory in nature.
We shall not undertake to mark the line between appellate and supervisory authority until it becomes necessary to decision. It is not necessary to decision in the present case, because we have here, clearly and distinctly, appellate authority.
The motion is overruled.