Ex parte France

Jordan, C. J.

The petitioner herein, J. Fred France, Clerk of the Supreme Court and ex-officio Clerk of the Appellate Court, has presented a petition to the Supreme Court, whereby he invokes its judgment in respect to his official duty of transferring to the Supreme Court undistributed cases pending in the Appellate Court, and in transferring to the Appellate Court, eases pending in the Supreme Court, as required by §2 of an act of the legislature in force on March 3, 1911 (Acts 1911 p. 201) entitled “An act entitled an act concerning appeals to the Supreme and Appellate Courts, defining the jurisdiction of each of said courts, providing for the distribution of cases appealed and not distributed, repealing all laws in conflict * * * and expressly repealing §10 of an act, ’ ’ etc.

The first section of this act provides that “all appeals in appealable eases in the following classes shall be taken directly to the Supreme Court, viz.: First. All cases in which there is in question, and such question is duly presented, either the validity of a franchise or the validity of an ordinance of a municipal corporation, or the constitutionality of a statute, state or federal, or the rights guaranteed by the state or federal Constitution. Second. All criminal prosecutions. Third. Actions to contest the election of public officers. Fourth. Cases of mandate and prohibition and actions or proceedings in quo warranto. Fifth. Cases of habeas corptis. Sixth. Actions to contest wills. Seventh. All actions in which the construction of a will is involved. Eighth. Proceedings to establish drains and proceedings to change or improve watercourses. Ninth. Condemnation proceedings for the appropriation of lands for public use. Tenth. Proceedings to establish gravel roads and proceedings to establish public highways and proceedings to vacate public highways. Eleventh. Judgments granting or denying licenses to sell intoxicating liquors. Twelfth. Prosecutions for contempt of the lower courts. Thirteenth. Applications for admission to the bar to practice law and proceedings to disbar an attorney at law. Fourteenth. All actions involving the title to real estate or the possession thereof. Fifteenth. All cases involving the granting or refusal to grant injunctions. Sixteenth. All cases for the specific performance of contracts. Seventeenth. All probate matters including all suits growing out of the settlement of decedents’ estates; the settlement of the estates of infants and the settlement of the estates of persons of unsound mind, and all matters incident thereto. Eighteenth. Interlocutory orders for the payment of money or to compel the execution of any instrument of writing, or the delivery or assignment of any securities, evidences of debt, documents or things in action. Nineteenth. Interlocutory orders for the delivery of the possession of real property or the sale thereof. Twentieth. Interlocutory orders appointing or refusing to appoint receivers, and interlocutory orders granting or dissolving, or overruling motions to dissolve temporary injunctions. Twenty-first. Interlocutory orders upon writs of habeas corpus. * * * All appealable cases, other than those herein mentioned shall be taken to the Appellate Court.”

1. It will be seen that by §1 of this act the jurisdiction of the Supreme Court is limited to twenty-one .classes of appealable cases. Under the express provision of the statute involved, it is declared that all appealable eases, other than those over which jurisdiction is invested in the Supreme Court, shall be taken to the Appellate Court. By this provision of the act the entire residuum of appellate jurisdiction is lodged in that court. It will be noted that the character of the cases over which the Appellate Court is given final jurisdiction is quite important. In the absence of any of the questions enumerated in the first clause of §1 being involved, it includes all appealable cases for the recovery of money, without regard to any limitation upon the amount. The amount may be a million dollars or over. The jurisdiction of the Appellate Court in cases for the recovery of money will include all cases for the recovery of damages on account of the death of a person by the wrongful act of another, also injuries either to person or property at common law or under a statute; also cases for the recovery of damages for the defamation of character, false imprisonment, malpractice, and for statutory penalties. That court is also invested with jurisdiction over insanity inquests, cases involving the rights and duties of common carriers, cases for divorce, and many others of importance. Under its jurisdiction the Appellate Court is authorized finally to decide for itself all questions arising in eases before it in regard to the admissibility, of evidence, and questions of practice and appellate procedure. The court, within the jurisdiction entrusted to it, has the power to declare what, in its judgment, is the governing law of the State. It is true that it is required to follow the decisions of the Supreme Court; but, in the absence of any revisory power or control over its decisions invested in that court, who is to determine whether it has followed the decisions of the Supreme Court ? With two exceptions the Appellate Court is given jurisdiction in all equity cases. Under the jurisdiction granted to it, it necessarily follows that it has the power to construe statutes and interpret contracts involved in any of the eases over which it has jurisdiction.

Section two of said act provides that “immediately upon the taking effect of this act the Clerk of the Supreme and Appellate Courts shall transfer to the Supreme Court all cases then pending in the Appellate Court, not distributed, the jurisdiction of which is by this act conferred upon the Supreme Court, and docket the same in the Supreme Court, and such Clerk of the Supreme and Appellate Courts shall also transfer to the Appellate Court all cases then pending in the Supreme Court not distributed, the jurisdiction of which is by this act conferred upon the Appellate Court, and docket the same in the Appellate Court,” etc.

Section three provides that “all cases now pending in the Appellate Court and not distributed, and all cases hereafter appealed or transferred to the Appellate Court shall be distributed in the order of their submission and placed upon the docket of the division to which they are distributed, irrespective of the district from which such appeals may have been taken.”

Section four declares that “the jurisdiction of the Appellate Court in all cases in which jurisdiction is hereby conferred upon said court shall be final.”

By section five all laws or parts of laws in conflict with the act are repealed,' and section ten of an act approved March 12, 1901 (Acts 1901 p. 565), entitled “An act concerning appeals, increasing the number of judges of the Appellate Court, providing that the same shall sit in two divisions, defining their jurisdiction and the jurisdiction of the Supreme Court,” etc., is expressly repealed.

2. Attorneys representing parties interested in undistributed cases pending on appeal in the Supreme Court, the jurisdiction of which, under provision of the act in question, is lodged in the Appellate Court, and which are required to be transferred to that court, have been permitted to appear in this proceeding, and by oral and written argument have raised the question of the constitutional validity of this statute. The Attorney-General, together with associate counsel, has appeared herein, and seeks to uphold the validity of the act in question. That under the petition of the clerk of this court the constitutional validity of this act may be raised and decided, is a proposition well settled. Ex parte Griffiths (1889), 118 Ind. 83; Ex parte Sweeney (1891), 126 Ind. 583; Ex parte Brown (1906), 166 Ind. 593, and authorities cited; Ex parte Fitzpatrick, (1909), 171 Ind. 557.

It is argued with much force by counsel opposing the validity of the act that by the provision of §4, which declares that “the jurisdiction of the Appellate Court in all cases in which jurisdiction is hereby conferred upon said court shall be final,” and by the express repeal of §10 of the act of 1901, supra, the legislature has attempted to make the Appellate Court coordinate with the Supreme Court, and to deprive the latter court of its superior authority, vested in it by article 7, §§1, 4, of the Constitution of this State. In the determination of the questions herein involved, it is necessary to set out some of the provisions of the Constitution. By article 3 the powers of the state government are divided into three separate departments, namely, the legislative, the executive, including the administrative, and the judicial, and no person charged with the official duties under one of these departments shall exercise any of the functions of another except as in the Constitution expressly provided. Article 7, §1, of the Constitution 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.” Article 7, §2, provides that “the Supreme Court shall consist of not less than three, nor more, than five judges, a majority of whom shall form a quorum; they shall hold their offices for six years, if they so long behave well.” Article 7, §4, declares that “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. It shall also have such original jurisdiction as the General Assembly may confer.” Article 7, §5, provides that “the Supreme Court shall, upon the decision of every case, give a statement in writing of. each question arising in the record of such case and the decision of the court thereon.” By article 7, §6, it is made the duty of the General Assembly to “provide, by law, for the speedy publication of the decisions of the Supreme Court made under this Constitution. ’ ’

A Supreme Court of this State has existed ever since the year 1816, in which year our first Constitution was adopted and the State admitted into the Union. Article 5, §1, of the Constitution of 1816 declared that “the judiciary power of this State, both as to matters of law and equity, shall be vested in one Supreme Court, in circuit courts, and in such other inferior courts as the General Assembly may from time to time direct and establish.”

In our Constitution of 1851 the section of the Constitution of 1816 just quoted, with some minor changes, was incorporated into article 7, §1, and as then adopted reads as follows: “The judicial power of the State shall be vested in a Supreme Court, in circuit courts, and in such inferior courts as the General Assembly may establish.” This section, as a part of the Constitution of 1851, remained unchanged for thirty years, during which time the phrase “such inferior courts” was construed by the Supreme Court as prohibiting the legislature — impliedly at least — from creating courts on a parity in rank and jurisdiction with, the circuit courts of the State. See Clem v. State (1870), 33 Ind. 418; Cropsey v. Henderson (1878), 63 Ind. 268.

The decisions in these cases, reenforced by the opinion of able lawyers, that all courts created by the legislature must necessarily, by the force of the words “such inferior courts as the General Assembly may establish,” be inferior to the circuit courts, led to a proposed amendment of article 7, §1, of the Constitution of 1851, empowering the General Assembly to establish courts that would not be inferior to the circuit courts. Consequently, in 1877, an amendment to this section was proposed by the legislature. By it the word “inferior” was eliminated from article 7, §1, and the word “other” was inserted instead. On account of the holding of the Supreme Court in the case of State v. Swift (1880), 69 Ind. 505, this amendment was not finally ratified by the electors of the State and made a part of the Constitution until March 14, 1881.

3. It is insisted that under our Constitution as amended in 1881 the legislature can establish no court of a higher rank than, the circuit courts; nor can it invest such a court so established with a larger jurisdiction than that which it may confer upon the circuit courts. As we view the ease before us, the decision of this proposition is not essential to the question here involved, for it is manifest that article 7, §1, of the Constitution as amended, neither expressly nor impliedly empowers the legislature to establish a court equal in rank to the Supreme Court, or in any degree coordinate with that tribunal.

4. 5. Counsel, seeking to sustain the statute, contend that there is no legal right of appeal in any case; that if an appeal is allowed it is merely a matter of grace on the part of the legislative department. In respect to this question, we may at the very threshold announce that the cardinal point here involved is not one in regard to what cases or to what courts litigants shall be allowed the right of appeal from judgments of the trial courts. The question involved is not one merely of private or personal benefit, but is one that concerns all persons of the State, and is not to be tied down solely to the mere rights of litigants. It will be noted that article 7, §1, vests the judicial power of the State in a Supreme Court, circuit courts, and such other courts as the General Assembly may establish. The word “supreme,” as used in connection with or in reference to courts, has a well-understood and well-settled meaning. It is derived from “super,” signifying “above, over, beyond.” Webster’s International Diet. Under the word “court” in the Century Dictionary, it^ is said that the supreme court is “the designation usually prescribed by law for the highest court of the state or Nation. * * * In the United States the name is usually given to the court having the general appellate jurisdiction over inferior courts, and original jurisdiction to supervise the proceedings of inferior courts.” In 8 Am. and Eng. Ency. Law (2d ed.) 38, it is said: “Supreme courts are those which possess the highest and controlling jurisdiction.”

6. The controlling power of the Supreme Court of this State within its functions has been frequently recognized and affirmed by that tribunal. State, ex rel., v. Noble (1889), 118 Ind. 350, 4 L. R. A. 101, 10 Am. St. 143; Ex parte Griffiths, supra; Branson v. Studebaker (1892), 133 Ind. 147; Pittsburgh, etc., R. Co. v. Peck (1909), 172 Ind. 562.

The case last cited arose because the Appellate Court called in question the final and conclusive character of an order of the Supreme Court, transferring that case to the Appellate Court, oh the ground that jurisdiction thereover, under the law, was lodged in the latter court. In passing upon the question as there involved the court said: “Under the Constitution of this State there is and can be but one Supreme Court. It is the highest judicial tribunal having appellate jurisdiction within the State, and is fully invested under the organic law with the right and power to determine, not only its own jurisdiction, but also has the power and authority ultimately and conclusively to determine, under the law, the jurisdiction of all other judicial tribunals within the State. By its decisions it determines what is the law of the land within its territorial jurisdiction, and all courts within the State, as well as all persons therein, are controlled by its decisions relative to what is the law, and should yield obedience thereto.?’

In the case of State, ex rel., v. Noble, supra, the court, on page 369, said: “Under our Constitution, as amended, the legislature may establish courts, but it cannot destroy the constitutional courts — the circuit courts and the Supreme Court — nor can it change their organization nor redistribute their powers, for these courts owe their organization to the Constitution, and as the Constitution has ordained that they shall be organized, so they shall be. Judicial power distributed by the Constitution is beyond legislative control. * * * The duty of maintaining the separation of the departments of the government and the integrity and existence of the courts as established and organized by the Constitution, is one of the most important that the judiciary is required to perform. It is the duty of the courts to uphold the Constitution as it is written, and to yield no part of their right or authority. Judges are chosen for the purpose of maintaining the limitations of the Constitution, without which free government cannot exist. As said by the court of appeals of New York: ‘If this provision were intended solely for the protection of the courts or its judges they might waive it; but we do not think it was so intended. It was, in our judgment, like the whole judicial system of the state, intended for the benefit of the people, and to secure to litigants a forum in which they might have their controversies adjudged. The jurisdiction which the constitution preserves in the courts named is inalienable, and carries with it the corresponding duty on the part of those courts to exercise it, when called upon in proper form to do so.’ Alexander v. Bennett [1875], 60 N. Y. 204.”

In the case of Branson v. Studabaker, supra, it is said: “Tho Supreme Court is undoubtedly the highest judicial tribunal of the State, and takes its rank from the Constitution. As its rank is bestowed upon it by the Constitution, the legislature cannot lower that rank or deprive it of the authority incident to its position as the superior judicial tribunal of the State. * * * It is not in the power of the legislature to make the Supreme Court inferior in any respect, to any other tribunal; but in it remains secure from legislative attack, the highest judicial power distributed by the Constitution. There must be in every state a court capable of exercising ultimate judicial power, otherwise there would be unending conflict. In this State there is a court invested with ultimate judicial power, and that is the Supreme Court. * * * The legislature cannot, under the guise of conferring inferior appellate jurisdiction upon other tribunals, grant them unlimited appellate jurisdiction; but it may grant such tribunals appellate jurisdiction by limiting it to classes of cases not of the highest grade, and restricting its authority to appeals from recoveries of a limited nature.”

7. It is settled beyond successful controversy, that, within the exercise of its functions and powers under the Constitution, the Supreme Court of this State is, in the full sense of that word, supreme over the other two departments of the state government, including the administrative, and it cannot be deprived by the legislature of the powers and rights conferred on it by the Constitution. Having partially considered the character and power of this tribunal, we pass a further consideration thereof for the present, and shall consider the Appellate Court, as established by the legislature, and the jurisdiction conferred on it by that body.

8. It was created in 1891. Acts 1891 p. 39. The legislature in this act gave as a reason for establishing this court, that “there is a pressing demand for some measure for the relief of the Supreme Court.” It was provided that the court should consist of five judges, and it was invested with a limited jurisdiction over appealable cases as follows: (1) Cases of misdemeanor; (2) cases originating before a justice of the peace where the amount in controversy exceeds $50; (3) cases for the recovery of money where the amount in controversy does not exceed $1,000; (4) cases for the recovery of specific personal property; (5) actions between landlord and tenant for the recovery of the possession of leased premises; (6) all cases of appeals from orders allowing or disallowing claims against decedents’ estates. It was provided that in all such cases the decision of the Appellate Court should be final. It was further provided, however, that if the validity of a statute of the State or of the United States was involved, such cases should be certified and transmitted to the Supreme Court to be decided by the latter court. By an act of the legislature passed in 1893 (Acts 1893 p. 29), the jurisdiction of the Appellate Court over appeals was extended so as to include all actions for the recovery of money where the amount in controversy did not exceed $3,500, and also cases arising out of matters of probate. It was further provided by this amendatory act that in all cases where the Appellate Court has jurisdiction its decisions should be final. The exceptions to this jurisdiction were as follows: (1) Cases where the constitutionality of a statute, federal or state, or the validity of an ordinance of a municipal corporation, is in question, and such question is duly presented; (2) suits in equity; (3) where the title to real estate is in issue. The period of the existence of the Appellate Court under the act creating it was limited to six years from March 1, 1891, and no longer. At the end of that time it was provided that the Supreme Court should assume the jurisdiction of all causes and other business pending in said Appellate Court. By an act of the legislature in 3897 (Acts 1897 p. 10), four years’ additional time for its existence was given, and in 1899 (Acts 1899 p. 24) a further period of two years and two months was added to its existence. In each of these latter acts it is also expressly provided that at the end of said time the Supreme Court shall assume jurisdiction of all causes and other business pending in said Appellate Court.

After the creation of the Appellate Court much controversy arose among judges and lawyers of this State in regard to the constitutional validity of the act creating it. This was especially true in regard to the provision that declared that its decisions should be final in the absence of any authority giving the Supreme Court any supervising control thereover. It was contended by able lawyers that by this finality provision in the statute the Appellate Court, to the extent of the jurisdiction conferred upon it, was made coordinate with the Supreme Court. In fact, on account of the supposed absence of authority on the part of the Supreme Court to exercise, in some manner, a revisory right over the decisions of the Appellate Court, in order to make them conform, i£ necessary, to the ruling precedents of the Supreme Court, and thereby keep them in harmony with those of the latter court, two lines of decisions were created. Consequently, there arose much confusion in respect to the controlling law in a particular case. Under the circumstances as they then existed, that question seemingly depended upon the court to which the cause might finally be appealed. To remedy this condition of affairs, and to eliminate from the act creating the Appellate Court the provision impressing its decisions unconditionally with finality, the legislature in 3901 (Acts 1901 p. 565, §1337a et seq. Burns 1901) enacted a statute revising the law pertaining to that tribunal. This was entitled “An act concerning appeals, increasing the number of judges of the Appellate Court,” etc. By it the number of judges of the Appellate Court vras increased to six, and the court was authorized to sit in two divisions.

It was declared by §9 of this act (§1337i, supra) that “no appealable case shall" hereafter be taken directly to the Supreme Court unless it be within one of the following classes: First. Cases in which there is in question, and such question is duly presented, either the validity of a franchise, or the validity of an ordinance of a municipal corporation, or the constitutionality of a statute, state or federal, or rights guaranteed by the state [or] federal Constitution. Second. All prosecutions for felonies. Third. Actions to contest the election of public officers. Fourth. Cases of mandate and prohibition. Fifth. Cases of habeas corpus. Sixth. Actions to contest wills. Seventh. Interlocutory orders appointing or refusing to appoint receivers, and interlocutory orders granting or dissolving or overruling motions to dissolve temporary injunctions. Eighth. Proceedings to establish public drains and proceedings to change or improve watercourses. Ninth. Proceedings to establish gravel roads.”

It was provided by this section that all other appealable cases should be taken to the Appellate Court. By §10 of this act (§1337j, supra) it was declared that “the jurisdiction of the Appellate Court shall be final except under the following conditions: First. If in any case, two of the judges of either division are of the opinion that a ruling precedent of the Supreme Court is erroneous, the case, with a written statement of the reasons for such opinion, shall be transferred to the Supreme Court.”

The second condition was that the losing party in any ease decided by either division of the Appellate Court might, within thirty days after the overruling of his petition for rehearing by the Appellate Court, file in the Supreme Court an application for the transfer of the case to that court, on the ground that the opinion of the Appellate Court contravened a ruling precedent of the Supreme Court, or that a new question of law was directly involved in the ease, and was decided erroneously by the Appellate Court. It was further provided that if the application to transfer "be granted, the judgment of said division of the Appellate Court is thereby vacated, and the ease shall be transferred to the docket of the Supreme Court. ’ ’

The third condition was that in any ease decided by either division of the Appellate Court the losing party shall have the right to appeal to the Supreme Court when the amount in controversy, exclusive of costs and interest on the judgment of the trial court, exceeds $6,000.

The purpose of the provision of §1337j, supra, which authorized transfers from the Appellate Court to the Supreme Court, was not in the interest of the losing litigant, but was to give the Supreme Court a revising hand over the opinions of the Appellate Court, when necessary, in order to control the declaration of legal principles contained therein. Klein v. Nugent Gravel Co. (1904), 162 Ind. 509; United States Cement Co. v. Cooper (1909), 172 Ind. 599.

In the latter case the court said: "The obvious purpose of the legislature in providing for this class of transfers from the Appellate Court to the Supreme Court was to keep the decisions of the two courts of appeal harmonious and consistent, and thus avoid the confusion that would arise from two incompatible lines of legal interpretation.” Upon the same point see Terre Haute Electric Co. v. Roberts (1910), 174 Ind. 351. The act of 1901, supra, expressly repealed all provisions of former acts limiting the existence of the Appellate Court, and thereby the life of that tribunal was continued indefinitely — at least until abolished by the legislature.

It is well-known that the drafting of said act was, in part at least, the work of the judges then composing the Supreme and Appellate Courts, and the provision therein for transfers, on the application of the losing party, from the Appellate Court to the Supreme Court was, to an extent, modeled after the provision of the act of Congress of March 3, 1891 (26 Stat. 826), by which the Circuit Court of Appeals was created, which act provided that the decisions of that court in a certain class of appealable eases should be final; but further provided, that “in any such case as is hereinbefore made final in the Circuit Court of Appeals it shall be competent for the Supreme Court to require, by certiorari or otherwise, any such case to be certified to the Supreme Court for its review and determination with the same power and authority in the ease as if it had been carried by appeal or writ of error to the Supreme Court.” The act of 1901, however, instead of authorizing the removal of cases from the Appellate Court to the Supreme Court by certiorari, provided a simple procedure for that purpose. The object of the provision in the act of Congress, in authorizing the certification of eases from the Circuit Court of Appeals to the Supreme Court is fully disclosed in the case of Forsyth v. Hammond (1897), 166 U. S. 506, 17 Sup. Ct. 665, 41 L. Ed. 1095. Judge Brewer in speaking for the court in that appeal, in respect to the act of Congress, creating a Circuit Court of Appeals whose decisions in certain cases were declared to be final, said: “While this division of appellate power was the means adopted to reduce the accumulation of business in this court, it was foreseen that injurious results might follow if an absolute finality of determination was given to the courts of appeal. Nine separate appellate tribunals might by their differences of opinion, unless held in check by the reviewing power of this court, create an unfortunate confusion in respect to the rules of federal decision. * * * Cases of a class in which finality of decision was given to the circuit courts of appeal might involve questions of such public and national importance as to require that a consideration and determination thereof should be made by the supreme tribunal of the Nation. It was obvious that all contingencies in which a decision by this tribunal was of importance could not be foreseen, and so there was placed in the act creating the courts of appeal, in addition to other provisions for review by this court, this enactment: ‘And excepting also that in any such case as is hereinbefore made final in the Circuit Court of Appeals it shall be competent for the Supreme Court to require, by certiorari or otherwise, any such case to be certified to the Supreme Court for its review and determination.’ ”

To reassert what we have previously said, the provision of §1337j, supra, authorizing the transfer of a case from the Appellate Court to the Supreme Court, on the ground that the opinion of the Appellate Court contravenes a ruling precedent of the Supreme Court, or that a new question of law is directly involved and was decided erroneously, was intended to give to the Supreme Court of this State a revising hand over the decisions of the Appellate Court, as was the purpose of the act of Congress authorizing the Supreme Court of the United States to remove by certiorari cases from the Circuit Court of Appeals to the Supreme Court of the United States.

In 1907 (Acts 1907 p. 237, §1, §1392 Burns 1908) the legislature amended §9 of the act of 1901, supra. By this amendatory statute the Supreme Court was given jurisdiction over additional cases, among which were those wherein the judgment of the trial court exceeded $6,000. By this same act, subdivision three of §1337j, supra, which provided for appeals from the Appellate Court to the Supreme Court in cases of a money recovery in the lower court in excess of $6,000, was repealed. The obvious reason for the repeal of this provision was that under this amendatory act an appeal from the trial court from a money judgment in excess of $6,000 was to be taken directly to the Supreme Court.

The statute of 1901, supra, as amended by the act of 1907, supra, appeared to be satisfactory to both the bar and the bench of this State, and remained in full force and effect at the time the act of 1911 (Acts 1911 p. 201) was passed. In view of the decisions of the Supreme Court, declaring the purpose for which the transfer provision in that act was inserted, we are unable to conjecture what cause prompted the legislature of 1911 to change the act of 1901, by declaring that the decisions of the Appellate Court shall be final, and by repealing §1337j, supra. After conferring upon the Appellate Court the enlarged jurisdiction as shown, including a class of cases that may involve the decisions of questions of great importance to the people of this State, the legislature, for some reason not apparent, deemed it proper to declare that the decisions of the Appellate Court in all such cases should be unconditionally final; thereby attempting to deprive the Supreme Court of the right to revise or review such decisions in order to keep them in harmony with the law of the land as announced by the latter court, and avoid conflicts and confusion in respect to the holdings of the two courts.

9. We believe that the act of 1901, in providing that the decisions of the Appellate Court should be final, subject to the conditions as therein prescribed under the Constitution, went to the boundary line of the power of the legislative department. By the act of 1911, however, the legislature carved out a jurisdiction for the Appellate Court coextensive with the limits of the State, and conferred upon it the power to review and supervise judgments rendered by trial courts within that territory in large and important classes of cases, and its decisions are made final in all appeals over which it is given jurisdiction. The effect of the act is to make the Appellate Court, within the jurisdiction conferred upon it, coordinate with the Supreme Court, and to withdraw from the latter court all revising and reviewing power, thereby making the Appellate Court supreme to that extent at least. That such power, under our Constitution, cannot be exercised by the legislature, is well-settled by the authorities to which we shall hereafter refer. It is affirmed by this court in the case of Board, etc., v. Albright (1907), 168 Ind. 564, 574, that “so far as this court is concerned, the creation of a ‘Supreme Court’ gives to it its own place at the head of the judicial system. There cannot be a court of coordinate jurisdiction with this court, for otherwise it would not be supreme. But one Supreme Court was established or contemplated.” Citing authorities.

A loading authority on the point in controversy sums up the law as follows: “Where a court is by the constitution placed at the head of the judicial system of a state, there being no appeal from its judgments to any other state tribunal, the legislature cannot interfere with its existence or supremacy, nor can that body alter the nature of its jurisdiction and duties, nor create a court of coordinate final jurisdiction, for no statute can in such case deprive the court of last resort of its rank as the highest and ultimate judicial power; but where the constitution expressly or impliedly so permits, or where Us judgment is subject to review by the court of dernier resort, or where its jurisdiction is so limited that it cannot equal that of the highest court, an intermediate appellate court may be created having even final jurisdiction, where the constitution is not exclusive in respect to supreme courts as courts of last resort.” (Our italics.) 11 Cyc. 706. In further support of this proposition see the following cases: Branson v. Studebaker (1892), 133 Ind. 147; State, ex rel., v. Noble (1889), 118 Ind. 350, 4 L. R. A. 101, 10 Am. St. 143; Ex parte Griffiths, supra; Board, etc., v. Albright, supra; Pittsburgh, etc., R. Co. v. Peck (1909), 172 Ind. 562; People, ex rel., v. Circuit Judge (1877), 37 Mich. 474; Brown v. Buck (1889), 75 Mich. 274, 42 N. W. 827, 5 L. R. A. 226, 13 Am. St. 438; Henderson v. Beaton (1879), 52 Tex. 29; State v. Jones (1845), 8 Rob. (La.) 573; Flanigan v. Guggenheim Smelting Co. (1899), 63 N. J. L. 647, 44 Atl. 762; State, ex rel., v. Vallins (1897), 140 Mo. 523, 41 S. W. 887; Sharpe v. Robertson (1849), 5 Gratt. (Va.) 518; Traphagen v. Township, etc. (1877), 39 N. J. L. 232; In re Court of Appeals (1886), 9 Colo. 623, 21 Pac. 471; In re Court of Appeals (1890), 15 Colo. 578, 26 Pac. 214; People, ex rel., v. Richmond (1891), 16 Colo. 274, 26 Pac. 929; Berkenfield v. People (1901), 191 Ill. 272, 61 N. E. 96; State v. Nast (1908), 209 Mo. 708, 108 S. W. 563; State, ex rel., v. Allen (1869), 5 Kan. 213; Hildreth’s Heirs v. McIntire’s Devisee (1829), 1 J. J. Mar. (Ky.) *206, 19 Am. Dec. 61; State v. Wilmington, etc., R. Co. (1898), 122 N. C. 877, 29 S. E. 334; Rhyne v. Lipscombe (1898), 122 N. C. 650, 29 S. E. 57; Elliott, App. Proc. §§2, 5, 25, 26, 72.

In the case of In re Court of Appeals (1886), 9 Colo. 623, the supreme court of Colorado held that an intermediate court, having appellate and final jurisdiction, could not be legally created by the legislature. The court in that ease said: “The judicial power, both appellate and original, lodged by the constitution in the supreme court, cannot be transferred to another court created by the legislature in any manner so as to make its decisions and opinions final. This jurisdiction is lodged in ‘a supreme court.’ Two such courts with like jurisdiction and powers are not contemplated by the constitution.”

In the case of People, ex rel., v. Circuit Judge, supra, the question arose as to the power of the legislature to deprive the circuit courts of any portion of their appellate jurisdiction over the courts of the justices of the peace. Cooley, C. J., who wrote the opinion in that case, said: “Both these classes of courts are constitutional courts, and so far as any jurisdiction is conferred upon either by the constitution, it is beyond the reach of the legislative power. * * * While it may be and has been claimed that the appellate jurisdiction still remains, though some eases are removed from its scope, there can be no plausible argument, as we think, that the supervisory control is left unimpaired when as to a large class of cases it is wholly superseded, and the control conferred upon another tribunal. Any reasoning that would support such legislation would justify a like apportionment of the probate jurisdiction between the constitutional probate court and the municipal courts of legislative creation.”

In Brown v. Buck, supra, the court, in considering an act of the legislature that attempted to make changes in the equity practice, as such practice existed when the constitution was adopted, so as to confer upon a jury larger powers in equity cases, said: “As it is not competent for the legislature to deprive the supreme court of its revisory jurisdiction over all the other state trbunals, no legislation which practically destroys it is valid.”

The case of Henderson v. Beaton, supra, deals with an act of the legislature creating a commission, whose members were styled “Commissioners of Appeals,” to relieve the accumulation of business in the supreme court and the court of appeals. The court in that case held that if in a case involving life, liberty or property, litigants were denied the right to resort to the constitutional courts of that state, and were required to go before different tribunals, organized perhaps under unfavorable circumstances and in a manner less calculated to receive wise and impartial adjudications, the constitution would be violated. It was there said that “the constitutional courts are designed to secure the citizen in his rights and to enforce the observance of constitutional limitations. ’ ’

In the case of People, ex rel., v. Richmond, supra, a question quite similar to the one involved in the case at bar was considered. The supreme court said: “There can be no doubt about the supremacy of the supreme court. This court is placed by the constitution at the head of the judicial system of the state; from its judgments there is no appeal to any other state tribunal, and its determinations are binding upon the rest of the state judiciary. The legislature cannot interfere with its existence or supremacy; nor can that body alter the nature of its jurisdiction and duties. And it follows of course that, without change in the fundamental law, the legislature cannot create a court of coordinate final jurisdiction. In re Court of Appeals [1886], 9 Colo. 623, 21 Pac. 471; In re Court of Appeals [1890], 15 Colo. 578, 26 Pac. 214. Every tribunal established. by statute, whether clothed with original or appellate powers, must, like the trial courts expressly named in the constitution, be inferior to the supreme court, subject to its ‘superintending control,’ and guided by its decisions upon questions determined in the exercise of its appellate authority.” (Our italics.)

In the ease of Traphagan v. Township, etc., supra, the supreme court of New Jersey declared that the legislature was without capacity to change the nature of the supreme court, either by directly abridging its original power, or by weakening its authority by lodging it coordinately in some other tribunal.

In the case of Berkenfield v. People, supra, the supreme court of Illinois held that the act creating an appellate court was not unconstitutional, because its judgments might be reviewed by the supreme court on appeal.

In Elliott, App. Proc. §2, it is said: “Where the constitution defines the jurisdiction of a court the legislature cannot take it away, nor, indeed, change it in any material respect. As a corollary of this principle it must follow that where a supreme court is created by the constitution with ultimate appellate jurisdiction, the legislature, although it may have the power to establish courts, cannot take away the superior appellate jurisdiction. The Constitution of Indiana creates a Supreme Court, and makes it the highest judicial tribunal of the State, so that while inferior tribunals may be created, a higher one cannot be established by the legislature. While the legislature cannot rightfully, or constitutionally, take away the supreme appellate jurisdiction of the Supreme Court, it may regulate the procedure, designate the amount that shall authorize an appeal, and, within limits,designate the class of cases that may be appealed; but it cannot, under the guise of regulating the procedure or the right of appeal, take away the essential jurisdiction of that court as the highest court of error or appeals.”

The same author also says (Elliott, App. Proc. §5) : “It. is no doubt true that under the constitutional amendments of 1881, the legislature may create intermediate appellate courts, but as it cannot take from the supreme court the ultimate appellate jurisdiction it would seem to follow that no statute can be valid which assumes to vest in any other tribunal than the supreme court jurisdiction of questions which require the highest expression of judicial judgment. Whether the legislature can give any other tribunal than the supreme court jurisdiction over all cases involving simply a controversy as to the right to money is doubtful, for it seems that even where money alone is in dispute there must be some limit to the jurisdiction of an intermediate tribunal, otherwise it would not be inferior.” (Our italics.)

10. The Constitution expressly invests the Supreme Court with jurisdiction, coextensive with the limits of the State, in appeals and writs- of error. No other court of appellate jurisdiction created by the legislature can by that body be authorized to enter this domain of the jurisdiction of the Supreme Court to the entire exclusion of the supervising or reviewing jurisdiction of the latter court. State, ex rel., v. Nolle, supra. No one would have the boldness to argue that the legislature might divide the State into two districts, one north and the other south, and invest the Appellate Court with final jurisdiction over cases appealed from the trial courts in the southern district, leaving the Supreme Court to have jurisdiction over appealable cases arising in the northern district. It is vain to argue that the act in question has due regard for the supremacy of the Supreme Court. That this is not true is apparent from the fact that it confers final jurisdiction upon the Appellate Court in all cases for the recovery of money, without any limitation as to the amount, and, in effect, excludes the Supreme Court from exercising any jurisdiction whatever in such cases. That this results, in respect to such cases, in making the Supreme Court virtually inferior to the Appellate Court, is self-evident. By the provision, “under such regulations and restrictions as may be prescribed by law,” as contained in article 7, §4, of the Constitution, the legislature is not empowered entirely to deprive the Supreme Court of appellate jurisdiction in all cases for the recovery of money. Elliott, App. Proc. §2; Curry v. Marvin (1849), 2 Fla. 411; Alexander v. Bennett (1875), 60 N. Y. 204.

Certainly it does not alter the case that the legislature, after wholly stripping the Supreme Court of all appellate jurisdiction in such cases, then, by the act in question, confers final jurisdiction thereover upon another court of its own creation. That which the legislature is by the Constitution prohibited from doing directly, it cannot do indirectly. The question with which we have to deal has never been before this court.

The cases referred to by counsel seeking to uphold the validity of the act arose soon after the creation of the Appellate Court, which was established by the legislature only temporarily. The first case is Ex parte Sweeney (1891), 126 Ind. 583, which arose out of the request of the Clerk of the Supreme Court for instructions in regard to what cases, under the act creating the Appellate Court, should be distributed by him to that court. No constitutional question, either as to the validity of the court or its jurisdiction under the statute creating it, was raised in that case.

In the case of Branson v. Studebaker (1892), 133 Ind. 147, the jurisdictional question raised was whether the title to real estate was in issue; if so, jurisdiction under the statute was in the Supreme Court. Nothing was said by the court that militates in any way against our holding in the ease at bar. The court apparently based the validity of the statute creating the Appellate Court wholly upon the ground that its jurisdiction was so limited as to prevent it from equalling in authority the Supreme Court.

The ease of Newman v. Gates (1898), 150 Ind. 59, arose upon a petition for a writ of certiorari to be issued by the Supreme Court to the Appellate Court, to require the latter to certify over the case of Gates v. Newman (1897), 18 Ind. App. 392, in order that it might be determined by the Supreme Court whether the opinion of the Appellate Court in that case contravened or conflicted with the decision in the case of Goble v. Dillon (1882), 86 Ind. 327, 44 Am. Rep. 308. The court held that the decision of the Appellate Court did not in any manner conflict with the decision in Goble v. Dillon, supra, and therefore the petition for the writ of certiorari was dismissed. Having reached that conclusion, it was unnecessary for the court to go into a consideration of the character of the Appellate Court, or the authority of the Supreme Court to issue a writ of certiorari ordering a certification of the ease in question. In the case of Newman v. Gates, supra, however, it is said that “there can be no doubt that the legislature, in creating the Appellate Court, and particularly in the enactment of the section above cited [i. e., the section requiring the decisions of the Appellate Court to conform to the decisions of the Supreme Court], expressed its intention that the interpretation of the law in the courts of this State should remain uniform and consistent, and that such interpretation should be determined wholly by the decisions of the Supreme Court.”

11. In concluding the consideration of the questions in this case, we may say that the judges of this court on being inducted into office are required to take a solemn oath to support the Constitution of the State. This duty can be performed no more sacredly by them than in upholding and maintaining the constitutional powers and authority invested in that tribunal.

12. Without further comment, we conclude and so hold, for the reasons herein given, that the act of the legislature approved March 3, 1911 (Acts 1911 p. 201), here involved, is violative of and antagonistic to the Constitution of this State, and therefore invalid in all its parts except §3. Under the circumstances, §5 of the act in question, which professes to repeal all laws or parts of laws in conflict, and also §10 of the act of 1901, must be held to be ineffectual and of no avail, and the act concerning appeals, increasing the number of judges of the Appellate Court, approved March 12, 1901, as amended by the act of 1907, remains in full force and effect in all its parts. As §3 of the act of 1911 is not dependent on any of the invalid provisions of that act, it can stand, and the clerk of this court will be controlled thereby. It follows, and we so direct and order, that the petitioner, the clerk of this court, must disregard the act of 1911, with the exception of §3, and must be controlled by the act of 1901, supra, as amended in 1907, supra, which still stands and remains in full force and effect as it did at the time of the passage of the act of 1911, supra.

All of which is ordered and adjudged by this court.

Morris and Cox, JJ., dissent.