Ex parte France , 176 Ind. 72 ( 1911 )

Dissenting Opinion.

Morris, J.

I cannot concur in the opinion of the majority of the court in this cause, and the importance of the statute, held by the majority to be unconstitutional, as well as the legal questions presented, impels me to state the reasons for dissenting, in an opinion of unusual length.

Inasmuch as the act of 1901 (Acts 1901 p. 565, §1337a et seq. Burns 1901) defining the jurisdiction of the Supreme and the Appellate Court, as amended in 1907 (Acts 1907 p. 237, §§1392, 1393 Burns 1908), is held valid, it will be instructive first to ascertain just what changes in the act of 1901, supra, are made by the act of 1911 (Acts 1911 p. 201). An examination of the acts discloses the fact that no change whatever is made in sections 1-6, 8-13, and 15-18 of the act of 1901, as amended in 1907, and the jurisdiction of the Supreme Court, as defined in said sections, is unchanged by the act in controversy.

By section seven of the act of 1907, supra, the Supreme Court was given jurisdiction in “proceedings to construe wills, in which no other relief is ashed.” (Our italics.) The act of 1911, supra, changes this section to read as follows: “All actions in which the construction of a will is involved.”

The effect of this change is to enlarge greatly the jurisdiction of the Supreme Court, and correspondingly to reduce that of the Appellate Court, which under the old act had jurisdiction of all proceedings involving the construction of wills, except in the very rare cases where no relief was asked except the construction of the instrument.

Section one, subdivision fourteen of the act of 1907, supra, gave the Supreme Court jurisdiction in appeals wherein a money judgment was rendered for more than $6,000. Under said act, jurisdiction in such eases is transferred to the Appellate Court. The number of such cases is comparatively small, and they are usually determined by common-law rules.

Section one, subdivision fourteen, of said act of 1911, confers on the Supreme Court jurisdiction of “all actions involving the title to real estate or the possession thereof.” Under the act of 1901 as amended in 1907, the Appellate Court had jurisdiction of nearly all such actions. The effect of this change is to enlarge the jurisdiction of the Supreme Court not only as to the number of cases, but also as to the conceded importance thereof.

Section one, subdivision fifteen, of said act of 1911 gives the Supreme Court jurisdiction in “all cases involving the granting or refusal to grant injunctions,” and subdivision sixteen thereof confers on this court jurisdiction of “all cases for the specific performance of contracts.” Under the former act, the jurisdiction of cases designated in said sections was vested in the Appellate Court. Actions for injunction and specific performance are of purely equitable cognizance, and cover a wide and important field in our jurisprudence. The transfer from the Appellate Court to the Supreme Court of these two classes of cases, coupled with that of all cases where the title to or possession of real estate is involved, and also that of all cases where the construction of a will is involved, has the effect of giving to the Supreme Court jurisdiction of a great body of causes of equitable jurisdiction, and, on consideration, it must be conceded that these changes transfer from the Appellate Court to the Supreme Court the most important equity cases.

Section one, subdivision seventeen, of said act of 1911, gives the Supreme Court jurisdiction of all probate matters, including estates of decedents, infants, and persons of unsound mind, and all matters incidental thereto, and all suits pertaining thereto. Under the former act, such cases — and they are very numerous — were taken to the Appellate Court.

By the act of 1911, supra, the jurisdiction of the Supreme Court, in the following instances is left precisely as it formerly existed: In eases involving the validity of franchises and ordinances of municipal corporations; the constitutionality of statutes and rights guaranteed by the state or federal Constitutions; criminal prosecutions and election contests; actions of mandate, prohibition and quo warranto; habeas corpus proceedings and actions to contest wills; actions to establish drains and improve watercourses; condemnation proceedings; actions to establish and vacate highways; judgments granting or denying liquor licenses; contempt of court; applications for admission to the bar to practice law, and disbarment proceedings; and appeals from interloetuory orders.

The act of 1901 as amended in 1907, and the act of 1911, contained the same residuary clause conferring on the Appellate Court jurisdiction of all appealable cases except those in which the jurisdiction was, by the act, specifically vested in the Supreme Court. These clauses read as follows: “All appealable cases, other than those herein mentioned, shall be taken to the Appellate Court.” Acts 1907 p. 237; Acts 1911 p. 201. “All other appealable cases shall be taken to the Appellate Court.” Acts 1901 p. 565.

The act in controversy repeals that portion of the act of 1901 providing for the transfer of causes from the Appellate Court to the Supreme Court. This act, as construed by the Supreme Court, authorized the transfer of a case only when the opinion filed by the Appellate Court declares a rule in conflict with a ruling precedent of the Supreme Court, or when the opinion of the Appellate Court announces an erroneous rule on a new question of law. However grossly erroneous the decision of the Appellate Court may have been, when the record was taken into consideration, or however unjust to the litigant may have been the action of the Appellate Court, when tested by the pleadings, evidence and judgment of the trial court, no relief was granted to the losing party on a petition to transfer, unless the opinion of the Appellate Court asserted an erroneous doctrine, and then, only as an incident thereto. The sole purpose of the law was to enable the Supreme Court to control the statements of legal principles as contained in the opinions of the Appellate Court, and was in no manner intended to secure to the litigant a review of his case on the merits. City of Huntington v. Lusch (1904), 163 Ind. 266; Grand Rapids, etc., R. Co. v. Railroad Com., etc. (1906), 167 Ind. 214, and cases cited. When a cause was transferred, however, the Supreme Court determined it on its merits. The Appellate Court is not required to give any opinion on affirming a judgment. In that event, there could possibly be no transfer, and an appellant could have no chance for incidental relief. §1401 Burns 1908, Acts 1901 p. 565, §17.

Section 1405 Burns 1908, Acts 1901 p. 590, provided that whenever, in the opinion of the Supreme Court, there is a disparity between the number of the cases pending in the two courts, the Supreme Court may order a specified number of cases pending in the Appellate Court, to be transferred to the Supreme Court, and there determined in the same manner as if they had been appealed originally to it. §1405, supra. This section was neither repealed nor modified by the act under consideration. By §4 of said act of 1911 the jurisdiction of the Appellate Court is final, except in cases where two or more of the judges of the Appellate Court are of the opinion that a ruling precedent of the Supreme Court is erroneous, in which event such cases ai’e to be transferred to the Supreme Court.

By the act of 1901, as amended in 1907, the jurisdiction of the Appellate Court was final in such cases, unless transferred to the Supreme Court because two judges of either division of the Appellate Court concluded that a ruling precedent of the Supreme Court was erroneous, or unless transferred by the Supreme Court because of the erroneous declarations of law in Appellate Court opinions. Acts 1901 p. 565, §10, §1394 Burns 1908, Acts 1907 p. 237. This latter provision, found in §10, is repealed by said act of 1911.

As no one questions the act because it transfers from the Appellate Court to this court jurisdiction in large classes of cases, such matter will not be considered.

There is left, therefore, but two questions in this controversy. The act of 1911 takes from the Supreme Court jurisdiction of cases when there is a money judgment of $6,000, or over, and it takes from the Supreme Court jurisdiction of petitions to transfer conferred by the second clause of §10 of the act of 1901. In no other respect was the jurisdiction of the Supreme Court lessened by the act of 1911. If the General Assembly violated the Constitution by repealing a section of a statute enacted by the legislature in 1901, or if it violated the Constitution in taking from the Supreme Court jurisdiction in appeals from money judgments for $6,000, or over, then the act must fall; otherwise it must stand.

It will scarcely be contended that the legislature of 1911 did not have the power to repeal the act of 1901, supra, the only limitations on the power of the General Assembly to repeal former acts, of which I am aware, is the provision of the federal Constitution forbidding the states from enacting laws impairing the obligations of contracts, and the provision of our own Constitution preventing the decrease of judges salaries during the terms for which they may have been elected. Of course neither of these provisions has any application here. To admit that a legislature may enact an irrepealable law is to concede that it may alter the very Constitution from which it derives its authority, and eventually deprive succeeding General Assemblies of all power. Cooley, Const. Lim. (7th ed.) 174. That the legislature acted within the scope of its authority in repealing this enactment, is not debatable.

But in the majority opinion it is asserted that the cardinal point here involved is not what cases may be appealed, or to what courts appeals may be taken — not a question of personal or private right to be tied down solely to the rights of litigants, but one which concerns all the persons of the State.

I cannot comprehend why a litigant, whose title to property depends on the correct application of a rule of law, can be constitutionally denied a review of his cause, and thereby be denied the protection of the law, and yet, the general public, with no pecuniary interest involved, can have the right to demand a review, and have the correct rule of law declared. No authority is cited to support the proposition, and I am unable to find any.

But aside from its novelty, this doctrine cannot possibly apply to any matter in issue here. If it be conceded that the Constitution guarantees to the general public the right to have the law of the State declared with absolute accuracy by the Supreme Court, this act cannot, even by conjecture, be declared to violate such right. The act does not hint even at affecting anything but the rights of litigants in the Appellate Court. In the classes of cases designated as appealable to the Appellate Court, it puts the stamp of finality on the litigation. The language of the statute (Acts 1911 p. 201, §4) is as follows: “The jurisdiction of the Appellate Court in all cases in which jurisdiction is hereby conferred upon said court shall be final.” The clause conferring jurisdiction (§1, subd. 21) is as follows: “All appealable eases, other than those herein mentioned [those appealable to the Supreme Court] shall be taken to the Appellate Court.” To constitute a case there must be a subject-matter presented to the court by a party. As this statute pertains only to appeals by persons — natural or artificial — I submit that the only question here involved is the power of the legislature to limit the rights of parties in appeals in certain classes of cases to a review thereof by the Appellate Court.

Our statutory appeal gives practically all the relief granted by the common-law writ of error and the original proceeding by appeal introduced into equity practice from the civil law. 2 Cyc. 511-517.

The legislature of 1852 abolished the distinction between actions at law and suits in equity, and at the same time abolished the writ of error. 2 R. S. 1852 pp. 27, 158. It has never been restored. Prom that time until 1901 no other method of review was known to our law except by appeal. The limited scope of review, provided in the transfer act of 190.1, was wholly new to our law, purely of statutory creation, and died with the repeal of the statute in 1911. This leaves us where we were prior to 1901, with the appeal as the only method of review, unless the Constitution itself guarantees some additional remedy. It will scarcely be contended that such remedy can be found in the language of the Constitution. It provides simply that the “Supreme Court shall have jurisdiction * * * in appeals and writs of error, under such regulations and restrictions as may be prescribed by law.” Const. Art. 7, §4. No one has ever questioned the power of the legislature to abolish the writ of error. Even if it had not, in express terms, done so, our statutory appeal, comprehensive as it is, would probably have abolished it by implication. 2 Cyc. 517.

As only appeals and writs of error are mentioned in the Constitution, and the latter having been constitutionally abolished, the General Assembly may undoubtedly limit a litigant’s right to have his cause reviewed by resort to appeal. The act in controversy has so limited it.

It is suggested in the majority opinion, however, that the act of 1901 might have been held unconstitutional if it had not been for §10, which provided for a limited review by transfer, and, with that repealed, the classification of causes appealable to the Supreme Court would have been unconstitutional.

Classifications, to be valid, must not be merely arbitrary; they must have some reason for support, inherent in the subject-matter. It therefore becomes proper to consider the conditions surrounding the enactment of this act in 1911.

The transfer act of 1901, in actual practice, had proved unsatisfactory to the bar of the State, because it provided for no review o£ a ease on its merits.

At the fourteenth annual meeting of the State Bar Association of Indiana, held at Indianapolis in July, 1910, the committee on Judicial Administration and Remedial Procedure, by its chairman, the Hon. Wm. A. Ketcham, of the Indianapolis "bar, reported for adoption by the association, and presentation to the General Assembly of 1911, a resolution, seeking the amendment of the transfer act so as to provide, on petition to transfer, for a review of the record on its merits. After full debate, as shown by the report of the proceedings, the resolution was adopted. Proceedings Indiana Bar Association (1910) 190-207.

When the act was passed on March 3, 1911 (Acts 1911 p. 201) the first division of the Appellate Court, which had jurisdiction of appeals from the northern district, was deciding cases where the transcripts had been filed in the spring of 1908. Owing to the less volume of business in the southern district, the second division was not so far behind. Litigants in the northern district, with appeals pending in the Appellate Court, were required to wait from two to three years, after the filing of the transcripts, for a decision. The result was practically to nullify article 1, §12, of our Constitution, which requires that “justice shall be administered * * * speedily, and without delay.” The Supreme Court had the right to take over eases from the Appellate Court and decide them, but, owing to the fact that about two-fifths of the time of the judges of the Supreme Court was taken in considering petitions to transfer, it had not, at that time, taken over any Appellate Court cases since May, 1906. During the year preceding this enactment the Supreme Court had transferred from the Appellate Court about sixteen eases. Of these cases, the result reached by the Appellate Court was approved in five eases and disapproved as to the remainder. These conditions confronted the legislature of 1911, when it entered on the enactment of some measure for relief. The result was this act, that abolishes the petition for transfer, divides the jurisdiction between the courts by a classification of eases based entirely on their nature, greatly increases the classes of cases given to the Supreme Court, and which it will be enabled to handle, by reason of the repeal of the transfer act; it also denies persons with appeals decided against them in the Appellate Court any right to a review of their causes by the Supreme Court.

Three courses were open to the members of the legislature: (1) To ignore the mandate of the Constitution which guarantees a spcpdy administration of justice, and permit the delay of the law to continue its work of bankrupting litigants, or compelling them to accept the terms offered by their adversaries outside of court; (2) to create another appellate court, adding greatly to the burdens of the taxpayers of the State; (3) to repeal the transfer act, and thus enable the Supreme Court to devote the time thus saved to the consideration of eases of which the Appellate Court then had jurisdiction; to classify, by their nature, the cases of which each court shall have jurisdiction, thus preventing any substantial conflict of decisions, and to make the judgment of the Appellate Court, in causes of which it has jurisdiction, final and conclusive, by denying the litigants a right to appeal therefrom to the Supreme Court.

Our Constitution gives the Supreme Court no supervising control over the lower courts, as do the constitutions of many states, among which may be named Michigan, Wisconsin and Colorado; and even in such states it has been uniformly held that such control applies only to keeping inferior courts within the bounds of their jurisdiction. People, ex rel., v. Richmond (1891), 16 Colo. 274, 26 Pac. 929. The Constitution says nothing about the rank of the Supreme Court, or any other court; but giving to the word “rank” the meaning of standing, or sphere of action, it does by necessary implication make this court the one of highest rank. The Constitution does not attempt to fix any standard of consistency for the decisions of any of the courts. If it had so attempted, it would have failed. The law is not, never was, and never can be, an exact science.

We measure distances and surfaces with yard sticks and rod poles, and we weigh substances with balances; for these purposes we have standards on which all agree. But when it comes to laws — rules of action — whether written by legislatures or declared by courts, there is no fixed standard, nor can there be one by which to determine their wisdom. These rules change necessarily with the changes in habits, customs and industries of the people. Man was not endowed with absolute wisdom, and we cannot say of any single decision of a court, that it declares a rule that should stand forever unmodified.

This statute requires the Appellate Court to follow the decisions of the Supreme Court. The presumption is, that it will do so. If not, the legislature can abolish the court at any time. The judges of the Appellate Court take the same oath of office taken by the judges of this court. Surely bad faith will not be imputed to the judges of that court in advance. Hanly v. Sims (1911), 175 Ind. 345. The judges of the Appellate Court are elected by the voters of the entire State, just as the judges of the Supreme Court are selected. They receive the same compensation for their services. There is no reason why the people may not elect as judges of the Appellate Court men possessing learning and wisdom equal or superior to that possessed by judges of the Supreme Court.

The Appellate Court has been in existence for two decades. The opinions of the court, printed in the forty-five volumes of Appellate Court reports, are a sufficient vindication of the learning and wisdom of those judges who have honored the State by their valuable contributions to our jurispradence. The integrity of those formerly selected, and the improbability that the people of the State will in the future select Appellate Court judges of inferior character, ought to disarm suspicion.

Under this act the Appellate Court will have for its determination causes involving new questions of law for which no precedent may be found. Some of these questions might be decided differently by the Supreme. Court, but as it will not be called on for decisions in such cases, there will be but one line of decisions.

It may be suggested that the Appellate Court might decide that a matter involved a new question of law, when the Supreme Court, if permitted to decide, might hold that it was governed by a rule formerly declared by the Supreme Court, because it frequently happens that judges of equal learning and probity arrive at different conclusions. This may be conceded, and yet the question remains, Whose decision would be preferable ? It is just as likely as not that the Appellate Court, under such facts, would take the better view. As said before, there is no absolute standard by which matters of this character can be determined. The Supreme Court of the United States is the greatest judicial tribunal in the world. Yet it will not be claimed that its decisions are always consistent. At least, it frequently happens that four of its nine judges contend in dissenting opinions that the majority opinion is in conflict with another line of decisions. That great tribunal frequently acknowledges previous errors by overruling former decisions. And so it is with this court. In the case of Board, etc., v. Allman (1895), 142 Ind. 573, 39 L. R. A. 58, this court had before it for consideration for the thirtieth time the question of implied liability of counties for the negligence of their officers in erecting and keeping bridges in repair. The Supreme Court had twenty-nine times decided that in such cases the counties were liable. The Appellate Court, being required by statute to follow the decisions of the Supreme Court, had similarly determined eight cases brought before it. After mature consideration, in the case of Board, etc., v. Allman, supra, the Supreme Court overruled the previous thirty-seven cases, thus, in the one case, overruling more than twice as many decisions as it did those of the Appellate Court in the year preceding this enactment. Time has vindicated the wisdom of this court in its action in the case last cited, and its action has met with the approval of the legal profession and the people of the State. In the case of Western Union Tel. Co. v. Ferguson (1901), 157 Ind. 64, transferred to the Supreme from the Appellate Court, with the recommendation of the judges thereof that this court overrule former decisions holding that actions could be maintained against telegraph companies for damages for mental anguish alone resulting from the company’s negligence, this court overruled the case of Reese v. Western Union Tel. Co. (1890), 123 Ind. 294, 7 L. R. A. 583, and a large number of Appellate Court cases following it. Many other similar cases might be cited. I merely refer to these cases to show that absolute consistency in judicial opinions in the same court is not attainable, even if desirable.

The law is a practical science, ordained for practical people. Constitutions are made, laws enacted, and decisions of courts promulgated, to enable the people the better to enjoy life, liberty and the fruits of their industry. The purpose in establishing this court was not to create a school of jurisprudence — however desirable such a school might be — but was primarily to administer justice, as nearly as may be approximated, between suitors who properly presented their causes; and also to preserve the decisions for the use and guidance of others who might become similarly situated.

While the Supreme Court has the capacity to receive jurisdiction of all controversies, and the legislature may confer on it jurisdiction of all questions, including those of a quasi-judicial nature, usually left to councils, boards of commissioners, tax commissioners and other boards, it was never contemplated, even in the infancy of the State, that every dispute should be reviewed by it. Even at the time when the State contained but a small fraction of its present population, it would have been impossible for this court to dispose of more than a small part of such business. Prom the very beginning, the jurisdiction of this court was restricted. Within certain limits, as to the amount in controversy, appeals from tire circuit court were prohibited, in a large class of cases, from the beginning until now, and during a great portion of that time the decision of the circuit court was final, even in matters involving rights guaranteed by the federal and state Constitutions. Colliery Engineer Co. v. American Car, etc., Co. (1901), 157 Ind. 111. In certain street improvements, involving vast interests, reports of appraisers appointed by the lower court are final. Randolph v. City of Indianapolis (1909), 172 Ind. 510.

Under our law, the State Board of Tax Commissioners fixes the valuation of railroad properties in the State, on which taxes are annually collected from the companies. Our Constitution requires a just valuation of all property for purposes of taxation. In fixing this valuation of railroad property, however grossly erroneous and unjust, the action of the state board is final, in the absence of fraud. Cleveland, etc., R. Co. v. Backus (1893), 133 Ind. 513, 18 L. R. A. 729. The aggrieved party in such case cannot even get a hearing in the circuit court. The q-wasi-judicial boards of various kinds annually determine the amounts of money to be taken from the people and corporations of the State, by assessments, etc., aggregating, probably, a larger amount than is determined by all the courts of the State. No doubt there is much error and injustice in the decisions of these various boards, but such decisions are not reviewable, simply because the legislature has not seen fit to confer jurisdiction thereof on the courts.

Much stress is laid on the portion of the act that takes from the Supreme Court jurisdiction to review money judgments in actions on contract, or in tort, because the Appellate Court is given final jurisdiction of causes that might involve “millions.” So far as the question of amount goes, a still greater objection might be urged against all boards of a judicial nature.

But the General Assembly was warranted in limiting the right of appeal in such cases, for the reason that actions of this character are largely governed by common-law or well-settled equity rules, and their determination usually requires only the application of well-settled principles of law. Another reason is, that in this class there are numerous cases, and it was necessary to draw the line of classification somewhere. Another strong reason is, that from the very beginning, probably for the reasons before stated, limitations were fixed on the right to appeal in that class of cases. The first Congress which convened after the adoption of the federal Constitution, prohibited appeals where the amount involved was less than $2,000. During the following century similar restrictions were applied in every American commonwealth. In recent years there has been a tendency to limit appeals classified by the nature of the action, rather than the amount involved. The new constitution of New York forbids a classification resting on the amount in controversy.

No court has ever decided, and probably none ever will, that a classification based on the amount in controversy, solely because the amount is small, is valid. Such holding would violate the equality of privileges clause of our Constitution. The suit involving $500 may be just as important to litigants in one action as one for $50,000 is to those in another. Whether this be so or not, both the letter and spirit of the Constitution would be violated by opening the doors of a court of justice to oue, and closing them against his less opulent neighbor.

To say that the Supreme Court of Indiana, whose jurisdiction is coextensive with the State, will hear the causes of only those who have $6,000, or more, at stake, simply because enough money is not involved in other cases, would be abhorrent to the principles of any republican form of government, or even to those of any modern monarchy. Usually no reasons have been given by the courts for sustaining classifications based on the amount in controversy, except that the legislatures have so decreed; because it has always been recognized that the legislative department of the government was invested with the unqualified power to apportion the jurisdiction of the courts, except where expressly restrained by the organic law; and where legislatures act within the scope of their authority, courts may not inquire into the reasons which inspired the enactments.

But if such inquiry is permissible, the reasons are obvious and valid.

When the people, by the Constitution, create the highest court of review, and make no attempt to give it jurisdiction of any particular class of cases, and know that it is impossible for such court to determine all the controversies that will arise, they, by sheer necessity, invest the legislative department with the pow;er to exclude from the consideration of such court certain classes of cases; for they guarantee the speedy administration of justice. With the necessity of excluding some classes, the next problem is, What classes shall be so marked? We all agree that those should be excluded in which the inferior courts would be least likely to err, especially where these classes embrace numerous causes, and would greatly relieve the burden of the highest court. This is what this act has done, for in no class of cases is the law so well settled as in that of money judgments. Of course there are exceptions. In this class will necessarily be embraced some cases of peculiar importance, involving entirely new questions of law. But no law can be enacted that may not work some unfairness in a particular instance. Even our statutes of descent do that in numerous eases. Coupled with this is the other reason, that this class embraces so many eases, it will greatly relieve the burden on the dockets of the Supreme Court. .

It is true that the Supreme Court would not have had its burdens greatly increased by leaving with it cases involving judgments of over $6,000, but there would have still remained the danger of two lines of decisions.

In my judgment, the legislature did not violate our Constitution in taking from the Supreme Court, and giving to the Appellate Court, jurisdiction of appeals where the judgment was for an amount in excess of $6,000.

The question here is not a new one. The Indiana Constitution, so far as the Supreme Court is concerned, is modeled after the federal Constitution. In this particular, the constitutions of most of the states are the same. In a few instances the jurisdiction of the highest court is defined, in whole or in part. In such cases there can be no question. But in most states, as in our own, the constitution simply creates the court, and invests it with appellate jurisdiction, coextensive with the limits of the state, under such restrictions and regulations as the legislature may prescribe. As litigants are prone to exhaust every resource, this question has been presented to the Supreme Court of the United States, and of the several states with similar constitutions, and each time the legislative department has greatly restricted the right of- appeal to the highest court. The rule deduced from these decisions is as follows: Where the right to appeal from the judgment of an inferior court to the Supreme Court, or court of supreme authority called by some other name, is not expressly secured by the constitution, the legislature may, in its discretion, make the decision of the inferior court final. This rule has been recognized in its entirety in Indiana.

In the case of Brownlee v. Whitesides (1846), 8 Blackf. 80, the Supreme Court of Indiana held there was no right of appeal from the circuit, to the Supreme Court in probate causes. This was because the statute made no provision therefor.

In the recent case of Amacher v. Johnson (1910), 174 Ind. 249, this court held as follows: “The Constitution of the State does not grant to any one the right either to a new trial or to an appeal to this court or any other court. Such a right depends upon the provisions of the statutes, and a new trial can be granted, or an appeal taken, only when authorized by statute, and then only in the manner, upon the conditions, and for the reasons named in the statute. Elliott, App. Proc. §§75-77; Lake Erie, etc., R. Co. v. Watkins (1902), 157 Ind. 600, and cases cited; Hughes v. Parker (1897), 148 Ind. 692, 695, and cases cited; Evansville, etc., R. Co. v. City of Terre Haute (1903), 161 Ind. 26, 35, 36, and eases cited; Brown v. Brown (1907), 168 Ind. 654, 655; State v. Rockwood (1902), 159 Ind. 94, 95, and cases cited; Kepler v. Rhinehart (1904), 162 Ind. 504, and cases cited; Randolph v. City of Indianapolis (1909), 172 Ind. 510; Smith v. Long (1909), 43 Ind. App. 668. See, also, Porter v. Industrial Printing Co. (1901), 26 Mont. 170, 183, 66 Pac. 839, 67 Pac. 67; State, ex rel., v. District Court, etc. (1903), 28 Mont. 123, 125, 126, 72 Pac. 412; Wright v. Mathews (1903), 28 Mont. 442, 444, 72 Pac. 820; State, ex rel., v. District Court, etc. (1903), 29 Mont. 176, 178, 74 Pac. 414; Vreeland v. Edens (1907), 35 Mont. 413, 421, 89 Pac. 735; Harrington v. Butte, etc., R. Co. (1908), 36 Mont. 478, 483, 93 Pac. 640; Saylor v. Duel (1908), 236 Ill. 429, 86 N. E. 119, 19 L. R. A. (N. S.) 377 and note.”

That this opinion is unqualifiedly sustained by a long line of harmonious decisions of this court, appears from a consideration of the following cases:

In the case of Sims v. Hines (1890), 121 Ind. 534, involving the right of this court to review certain matters arising in a street assessment, it was held by this court that “there can be no doubt that the legislature has power to declare what questions shall be and what questions shall not be tried on appeal. It has, indeed, the authority to deny an appeal and to make the decision of the municipal officers final and conclusive. * * * If the legislature can, as the authorities declare it may do, entirely deny an appeal, there can be no question as to its right to limit the questions which may be tried.”

In the case of Randolph v. City of Indianapolis (1909), 172 Ind. 510, it was held that the judgment of the Superior Court of Marion County was final in a matter relating to assessments for street improvements. The court used this language in its opinion: “The statute before us provides that the report of appraisers appointed by the court ‘shall be final and conclusive’ upon all parties thereto. No appeal from such report or appraisement is specially authorized and none exists.”

In the case of Whittem v. State (1871), 36 Ind. 196, involving the right of appeal in a contempt case, this court said: “¥e are confronted at the threshold of this investigation with the questions of whether the appellant had a right of appeal, and whether this court has the jurisdiction to review the finding and judgment of the court below. The power and jurisdiction of the courts in this State are fixed and determined by the laws of their creation, and the right to appeal from an inferior court to this court is provided by the code.”

In the case of Hughes v. Parker (1897), 148 Ind. 692, the court used this language: “More than this, we may observe that the right to an appeal is and always has been statutory. Elliott, App. Proc. §75, and following, and note to §354. In the ease before us, as said in Sims v. Hines [1890], 121 Ind. 534, the legislature had ‘the authority to deny an appeal and to make the decision of the municipal officers final and conclusive.’ ”

In the case of Rupert v. Martz (1888), 116 Ind. 72, this court held that “there are no vested rights in the law generally, nor in the legal remedies, and hence changes in them by the legislature do not fall within the constitutional inhibition, unless they are of such a character as materially to affect the obligation of contracts. Davis v. Rupe [1888], 114 Ind. 588; Bryson v. McCreary [1884], 102 Ind. 1, and cases there cited. The statute providing for a review of judgments is not a contract, nor can it be properly said that it enters into contracts made by contracting parties, either as a part of the contracts or as a part of the remedy. If such a statute confers a right at all, the right thus conferred is a mere statutory right, and having been conferred by the legislature it may be changed or taken away by the legislature.”

In the case of Brown v. Porter (1871), 37 Ind. 206, the court held the decision of the circuit court, sitting as a court of appeal from the commissioners’ court, in liquor license cases, was final, and the Supreme Court had no power to review. The opinion was by "Worden, C. J., in the course of which the following language was used: “In the case of Board, etc., v. Lease [1864], 22 Ind. 261, it was held, that, under this statute, no appeal lies to this court. We adhere to that decision. See, also, State v. Vierling [1870], 33 Ind. 99. The language of the statute is a little ambiguous, but we think it was the intention of the legislature that no appeal should lie to this court in such cases. Perhaps the reason was that the time of this court should not be consumed in the decision of controversies of such character.”

In the case of Brown v. Brown (1907), 168 Ind. 654, this court said: ‘‘The right of appeal is given by statute, or it does not exist.’’

In the ease of Evansville, etc., R. Co. v. City of Terre Haute (1903), 161 Ind. 26, it was held that “the right of appeal is not a natural or inherent one. It does not exist at common law, and in this State it is conferred wholly hy statute, and, when once conferred, it may subsequently be withdrawn by the legislature, unless in so doing some provision of the organic law of the State is violated. ’ ’

The Appellate Court, in the ease of Bear v. Reese (1909), 44 Ind. App. 465, held that the judgment of a circuit court was final. The court said: “Our attention has not been called to any statute, nor do we know of any expressly or impliedly, authorizing this appeal. Without such a statute no right of appeal exists. Hughes v. Parker (1897), 148 Ind. 692; Pittsburgh, etc., R. Co. v. Gillespie (1902), 158 Ind. 454.”

The first General Assembly after the adoption of the Constitution of 1851, under its power to regulate and restrict appeals and writs of error, abolished the latter altogether, and provided strict regulations for appeals, by which every failure to assert a legal right at the proper time waived such right. Hornberger v. State (1854), 5 Ind. 300; Board, etc., v. Brown (1860), 14 Ind. 193.

In the case of State v. Rockwood (1902), 159 Ind. 94, the court, in passing on the right of the State to appeal in a contempt proceeding, used the following language: “The right of appeal exists only in those cases where it is given by statute. ‘The right to an appeal is and always has been statutory, and does not exist at common law. It is a remedy which the legislature may in its discretion grant or take away, and it may prescribe in what cases, and under what circumstances, and from what courts, appeals may be taken; and unless the statute expressly or by plain implication provides for an appeal from a judgment of a court of inferior jurisdiction, none can be taken.’ Sullivan v. Hang [1890], 82 Mich. 548, 46 N. W. 795, 10 L. R. A. 263; Lake Erie, etc., R. Co. v. Watkins [1902], 157 Ind. 600, 605.”

In the case of Board, etc., v. Albright (1907), 168 Ind. 564, the court had under consideration the constitutionality of an act giving a superior court of a certain county the exact jurisdiction conferred on circuit courts, and in the course of the opinion said: “In Commonwealth, ex rel., v. Hipple (1871), 69 Pa. St. 9, it was held that, under a provision of the Pennsylvania constitution authorizing the creation of ‘other courts,’ it was competent to establish criminal courts having concurrent jurisdiction with criminal courts existing under the constitution, the court saying: ‘ The constitution having neither defined nor limited the jurisdiction of the courts named in the constitution, or of those to be afterwards established, the power to create new courts and new law judges carried with it the power to invest them with such jurisdictions as appear to be necessary and proper, and to part and divide the judicial powers of the state so as to adapt them to its growth and change of circumstances.’ When the Constitution of the state required that such courts as might be created should be ‘inferior’ to the circuit courts, their relative rank was properly tested by the extent of their jurisdictions, but, with the word ‘other’ substituted, it appears to us that no possible constitutional objection could exist to the creation of a court which shared with the circuit court its jurisdiction and its power. As applied to the case in hand, we may appropriately borrow the observation of this court in Combs v. State (1866), 26 Ind. 98, 99: ‘Large communities require more time for the transaction of judicial business than small ones, and if one court cannot do the business, there must be more created.’ * * * The only direct provision, however, which is found in the Constitution of 1851, concerning the jurisdiction of the circuit courts, is that they ‘shall have such civil and criminal jurisdiction as may be prescribed by law.’ Constitution 1851, Art. 7, §8. This gives to the General Assembly power to fix the extent of their jurisdiction. Board, etc., v. Gwin (1894), 136 Ind. 562, 22 L. R. A. 402; Brown, Jurisdiction (2d ed.) §14. No question of making said courts inferior to the highest nisi prius courts is here involved. "When an attempt is made, by the narrowing of their jurisdiction, to put them in the category of inferior courts, it will be time enough to vindicate their right. The hope of constitutional government for the future does not require that the legislative power should in all cases be bound down by iron bands.”

In'the case of Branson v. Studebaker (1892), 133 Ind. 147, in holding the act valid which conferred final jurisdiction on the Appellate Court in certain classes of eases, this court held as follows: ‘ ‘ The statute creating the Appellate Court does not apply to one class of litigants. * * * It applies to all litigants, and makes no attempt to classify by individuals or parties. The basis of the system of classification is the difference in classes of cases, and not in the situation of parties or persons. The statute is general and uniform, inasmuch as it makes a general classification, and operates uniformly upon all the classes included in the system adopted. * * * The provisions of the statute creating the Appellate Court, and authorizing the transfer to that court of cases appealed to this court prior to its enactment, are valid. There is no vested right in a remedy or in a tribunal.”

One of the leading cases on this subject is Lake Erie, etc., R. Co. v. Watkins (1902), 157 Ind. 600. This ease has not only been frequently approved in Indiana, but has been regarded as an authority by the courts of other states, and by textbook writers. The following language was used in the opinion: “That a party to a suit or action has no vested right to appeal or prosecute a writ of error from one court to another, in the absence of constitutional protection in that respect, is a well-settled proposition. Neither by instituting nor by defending an action or a suit does a party thereby acquire a vested right to a decision from a particular court or tribunal. This doctrine, so universally; asserted and supported by the authorities, is but. an affirmation or extension of the familiar principle that there is no vested right in a remedy. * * * In Sullivan v. Haug [1890], 82 Mich. 548, 46 N. W. 795, 10 L. R. A. 263, the court said: ‘ The right to an appeal is and always has been statutory, and does not exist at common law. It is a remedy which the legislature may in its discretion grant or take away, and it may prescribe in what cases, and under what circumstances, and from what courts, appeals may be taken; and unless the statute expressly or by plain implication provides for an appeal from a judgment of a court of inferior jurisdiction, none can be taken. ’ * * * An examination of article 7, §4, discloses that it does not define or mention the class of eases in which the Supreme Court shall have appellate jurisdiction. It is therein declared that this court shall have such jurisdiction ‘under such regulations and restrictions as may be prescribed by law.’ While it is certainly true that the legislature, under this provision of our fundamental law, is not authorized to deprive the Supreme Court entirely of its appellate jurisdiction, still, the legislature may not only from time to time enlarge such jurisdiction, but it may also contract the same as public policy may demand or require. It may designate the amount that may authorize an appeal, and, within reasonable limits, it may prescribe the class of cases in which appeals can be taken, and from what, courts or tribunals they may be prosecuted, The policy of the framers of our Constitution seems to have been not to prescribe absolutely the boundaries or limits of the jurisdiction of our courts, but to allow a legislative discretion in that respect in order that the varying demands and changing necessities of the people might be satisfied. See Branson v. Studebaker [1892], 133 Ind. 147, and authorities cited; People, ex rel., v. Richmond [1891], 16 Colo. 274, 26 Pac. 929; McClain v. Williams [1897], 10 S. Dak. 332, 73 N. W. 72, 43 L. R. A. 287; 2 Ency. Pl. and Pr. 14, 19, and the many authorities hereinbefore cited. ’ ’ To the same effect see the eases of Barnes v. Wagener (1907), 169 Ind. 511; Kepler v. Rinehart (1904), 162 Ind. 504; Bosley v. Ackelmire (1872), 39 Ind. 536; Newman v. Gates (1898), 150 Ind. 59; Board, etc., v. Davis (1894), 136 Ind. 503, 22 L. R. A. 515; Ex parte Sweeney (1891), 126 Ind. 583.

The question here involved was presented to the Supreme Court of the United States in the ease of Clark v. Bazadone (1803), 1 Cranch *212, 2 L. Ed. 85. A writ of error issued from the Supreme Court to the general court for the territory northwest of the Ohio river, to reverse a judgment rendered in that court against Clarke. Mason, for plaintiff in error, contended that the Supreme Court possessed a general superintending power over all the other federal courts, resulting from the nature of a Supreme Court, independent of any express provisions of the Constitution or laws of the United States. The decision of the court was as follows: “The court quashed the writ of error, on the ground, that the act of Congress had not authorized an appeal or writ of error from the general court of the Northwestern Territory, and therefore, although from the manifest errors on the face of the record, they felt every disposition to support the writ of error, they were of opinion they could not take cognizance of the ease. ’ ’

In the ease of United States v. More (1805), 3 Cranch *159, *173, 3 L. Ed. 232, in an opinion by Marshall C. J., it was held: “This court, therefore, will only review those judgments of the circuit court of Columbia, a power to reexamine which, is expressly given by law.”

In the ease of Daniels v. Rock Island R. Co. (1865), 3 Wall. 250, 18 L. Ed. 224, the court said: “To come properly before us, the case 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 jurisdiction 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 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.”

The doctrine first announced by the Supreme Court in the case of Clark v. Bazadone, supra, more than a century ago, has been adhered to ever since by that court, in the scores of cases wherein the question was presented.

In the ease of The Paquete Habana (1900), 175 U. S. 677, 20 Sup. Ct. 290, 44 L. Ed. 320, the following language is used: “The judiciary act of the United States, for a century after the organization of the government under the Constitution, did impose pecuniary limits upon appellate jurisdiction. * * * But all this has been changed by the act of March 3, 1891, e. 517, establishing the circuit court of appeals, and creating a new and complete scheme of appellate jurisdiction, depending upon the nature of the different cases, rather than upon the pecuniary amount involved. 26 Stat. 826. By that act, as this court has declared, the entire appellate jurisdiction from the circuit and district court of the United States was distributed, ‘according to the scheme of the act,’ between this court and the circuit court of appeals thereby established, ‘by designating the classes of cases’ of which each of these courts was to have final jurisdiction. ’ ’

In the ease of Huguley Mfg. Co. v. Galeton Cotton Mills (1902), 184 U. S. 290, 22 Sup. Ct. 452, 46 L. Ed. 546, the court said: “The act of March 3, 1891, c. 517, 26 Stat. 826, provides in §6, that the circuit court of appeals shall have appellate jurisdiction to review judgments and decrees of the circuit courts in all cases in which a direct appeal is not allowed by §5 to this court, and that the judgments and decrees of the circuit courts of appeals shall be final in all cases in which the jurisdiction is dependent entirely on diversity of citizenship. * * * The general intention of the act was to distribute the appellate jurisdiction and to permit an appeal to only one court.” The act of Congress of March 3, 1891, also provided for a limited review of the decisions of inferior courts by the Supreme Court, by writ of certiorari. This review, depending entirely on the authority therefor conferred by the act of Congress, would fall with a repeal of the act. “Although the appellate powers of .this court are given by the Constitution, they are nevertheless limited and regulated by acts of Congress.’’ National Exchange Bank, etc., v. Peters (1892), 144 U. S. 570, 12 Sup. Ct. 767, 36 L. Ed. 545.

“It has been held in an uninterrupted series of decisions that this court exercises appellate jurisdiction only in accordance with the acts of Congress upon that subject.” Colorado Cent. Mining Co. v. Turck (1893), 150 U. S. 138, 14 Sup. Ct. 35, 37 L. Ed. 1030.

In the case of Sharpe v. Robertson (1849.), 5 Gratt. (Va.) 518, there is revealed more learning and careful research than in any other decision on this subject. The statute there under consideration created a special court of appeals, with jurisdiction to determine annually seventy cases pending for more than two years on the Supreme Court docket. The act was passed to provide relief for the Supreme Court, which was more than two years behind with its labors, and had on its docket more than five hundred cases. Peculiar interest attaches to the case, because it construed the Virginia constitution of 1829, which was similar to that of the United States and of Indiana; and especially because the convention that formulated that constitution was presided over by ex-President James Monroe, and ex-President James Madison and John Marshall, then chief justice of the Supreme Court of the United States, were members of the convention, the latter having been chairman of the judiciary committee. The debates of the convention show that chief justice Marshall was frequently asked during the convention as to the proper construction of certain clauses of the Constitution as adopted. He was asked if the resolution (which was adopted) did not leave the jurisdiction of the courts to be fixed by law, and his reply was: ‘ The gentleman from Chesterfield (Leigh) has understood the language of these resolutions correctly. No doubt was entertained in the judicial committee, that the whole subject of the jurisdiction of courts, and the change of their form should be submitted entirely to the legislature. There was no question on the subject.” Debates, Virginia Const. Conv. 1829, p. 616.

The Virginia constitution on this subject is practically the same as ours, and 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 of the judges thereof, shall be regulated by law.” In the case of Sharpe v. Robertson, supra, the court, by Baldwin, J., said on page 603: “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 time to time, to confer upon it. The regulation by law of the jurisdiction of the several courts of the commonwealth, embraces the distribution of the judicial power amongst them; in regard to which, there is no limitation, except such as arises out of the distinctive character of the tribunals, so far as designated by the constitution. The jurisdiction of the supreme court is to be appellate, or of that nature in a liberal sense; that of the other courts may be original or appellate— the jurisdiction of all may be either civil or criminal. There can be no appeal from the supreme court to the superior courts, nor from the latter to the county courts; but, on the other hand, there is no constitutional right of appeal from the county to the superior courts, nor from the latter to the supreme court. The legislative department has authority to terminate litigation where it pleases, but cannot protract it beyond the supreme court of appeals. The jurisdiction of this court is constitutionally supreme, not because it is final, but because it cannot be otherwise. The jurisdiction of other courts may be rendered final by legislative permission, during’ which they have a kind of supremacy, but not in a constitutional sense. Thus the right of appeal from the county courts, or the superior courts, may be withheld or restrained, at the discretion of the legislature. But in the nature of things, no appeal can be allowed from the supreme court of appeals to any other tribunal. The jurisdiction of the supreme court of appeals is therefore, of necessity, final, but the extent of it is a matter dependent wholly upon the legislative will. It may be made broad or narrow, as the discretion of the legislature shall dictate. It may be made to embrace the whole judicial appellate power, or a small portion of it only. It may be confined to civil controversies, or to actions at common law, or to suits in equity, or to actions or suits of a particular description. It may exclude civil controversies altogether, and be restricted to criminal causes. It may, from time to time, be extended or withheld, or withdrawn, as to the legislative mind may seem most expedient. The policy which led to the constitutional requirement of a supreme court of appeals, is sufficiently obvious, and needs no exposition. But it was a policy which could not be carried out by the fundamental law itself, without undertaking to regulate thereby the jurisdiction of the several courts; and to have done this by a law so permanent in its nature, would have precluded such alterations in the distribution of the judicial power, as experience should suggest, and the changing wants and interests of the country at future periods require. Indeed it would have been incompatible with the unlimited power given to the legislature to establish superior courts, whether of civil or criminal, common-law or equitable, original or appellate, jurisdiction, and to modify, change or abolish them at pleasure. It was therefore deemed best to ordain the establishment of a supreme court of appeals, and to leave its practical usefulness unreservedly to the care and wisdom of the legislative department. * * * The judicial power is exhausted in a cause when there has been a final and irreversible adjudication of it by a court of competent jurisdiction, whether original or appellate. * * * The supremacy of this court is to be found, not in the extent of its jurisdiction, or the amount of its business, but in the paramount force and authority of its adjudications — a force acting directly in controlling, without being controlled by, other tribunals — an authority operating indirectly, from the respect and deference due to the highest tribunal known to the constitution and the laws. The influence of its authority extends beyond the range of its power. It is not limited by its actual, but is coextensive with its potential jurisdiction — with its capacity to receive from the laws unlimited control over all cases decided by the subordinate tribunals. The conformity of the other courts to its principles is not a slavish submission to the lash of power, but a willing and cheerful obedience yielded from a sense of propriety and duty. The authority of the supreme court, as distinguished from its power, is not the less obligatory upon a subordinate tribunal, because the same has not yet been subjected, or only partly subjected to its jurisdiction. The principles of the civil and criminal law are in many respects the same, and the same questions may arise in the administration of both. The general court is still the court of last resort in criminal cases; and yet can it be supposed that in the adjudication of a criminal cause, that tribunal would not be governed by a principle applicable to it, which liad been settled by decisions of the supreme court of appeals? Or does any one seriously believe that the latter would be bound to conform to the decisions of the former, because in the present state of the law the same are irreversible ? It would be difficult for those indulging such a fancy to stop short of allowing the like influence to irreversible decisions, not only of the circuit courts and the county courts, but even of justices of the peace. If the foregoing views be correct, in what respect does the law in question invade the constitutional supremacy of this court? It provides for the trial, annually, by the special court of appeals thereby constituted, of the seventy eldest causes ready for hearing, which shall have been depending more than two years in the branch of the supreme court held at Richmond. The effect of this law is, by a uniform regulation, to withdraw from this court a portion of its business, and send it to the determination of another forum. Its operation is, in the first place, to reduce the docket within a reasonable compass, and afterwards to keep it in the same condition. It affects the jurisdiction and not the supremacy of the court. In truth, the difficulty of this question, it seems to me, has arisen from confounding the jurisdiction of the court with its supremacy, which are far from being identical; the former is derived from the laws, the latter from the constitution ; the former is temporary and mutable, the latter permanent and immutable; the former is the field for the exercise of judicial power, the latter is in itself the exercise of that power. The moment that it is ascertained that this court continues supreme, it follows, from the same principles, that the tribunal organized by the law in question is neither supreme nor coordinate. It is true, that its adjudications are final and irreversible; but not more so than those of the general court in criminal causes; not more so than many of those of the circuit courts, of the county courts, and of justices of the peace. The right of appeal from that tribunal to this does not exist to-day, but the legislature may allow it, to any extent, to-morrow. On the other hand, it is beyond the legislative power to authorize appeals from this supreme to that special court. * * * The special court is a subordinate tribunal, as much so as any other superior court which the legislative department may, in its discretion, from time to time establish; and is as much bound to defer to the authoritative decisions of the supreme court of appeals. ’ ’

In the same case it is said by Allen, J.: “In ordaining that there should be a supreme court of appeals, the constitution did not designate what portion of judicial power it should exercise. All judicial power was vested in it, and the county courts, and such superior courts as might be established, and the judges thereof. But no ■ attempt was made to define their jurisdiction. * * * The construction of the constitution is not to be entered upon in a spirit of distrust towards the legislative department. For if that be felt and acted upon, our system of government would become impracticable. There is no external force which can be brought to bear so as to compel the legislature to discharge any of its functions. By abstaining to elect a governor, we may be left without an executive; by refusing to pass laws, or repealing those in existence regulating the jurisdiction of the courts and judges, the judicial power would be in abeyance. Such extreme suppositions lead to no practical result. But to remove all doubt as to the discretion intended to be confided to the legislature, it is expressly declared ‘that the jurisdiction of these tribunals, and the judges thereof shall be regulated by law. ’ In the language of Judge Marshall, as recorded in the debates of the convention, page 505: ‘ The article leaves the whole subject open to the legislature. They may limit or abridge the jurisdiction of all the courts as they please.’ And again: ‘The whole subject of jurisdiction is submitted, absolutely and without qualification, to the power of the legislature. ’ In the exercise of this discretion, they have portioned out the jurisdiction amongst the different courts; and in doing so have withheld from the jurisdiction of the supreme court of appeals, all cognizance of criminal cases; and in civil cases, have restricted it (with certain ■exceptions) to controversies where the matter involved amounted in value to $100, or upwards. They could, in their discretion, have limited it to any other sum. There being no limitation on the discretion of the legislature, in the regr ulation of the jurisdiction of the court, the supremacy which characterizes and distinguishes it from other tribunals, cannot be affected by legislation bearing merely on the jurisdiction confided to it. It is not the less supreme, because no appeal lies to it from the judgment of the general court in criminal eases. It would still remain the supreme court, though jurisdiction in the cases of wills, or any other branch of jurisprudence, should be denied to it. Nor does its supremacy result from the exercise of appellate jurisdiction. Every court in the commonwealth is an appellate court in certain cases. Nor is it a consequence of the finality of its decision in cases of appeals; for the judgments of every other court are final within certain limits, whether the case be brought before them by appeal or original process. Nor does its supremacy depend on the importance of the controversies submitted to its cognizance: The general court by the existing law decides finally in cases involving the life of the citizen. The principle upon which the supremacy of the court rests is not to be found in any of these circumstances. We have courts endowed with all these attributes, and yet they are confessedly subordinate tribunals. It is the consequence of the fact that the form of the court cannot be changed or modified at the will of the legislature; it must exist as a supreme court or not at all; and because its judgments are not only final by the law giving it jurisdiction, but there exists no power to subject them to revision; otherwise it would cease to be the highest, and if so, the court of the last resort. The court can act in no case except by virtue of and in the mode prescribed by law; and the legislature may at their discretion, enlarge or limit its jurisdiction. But when it has acted upon a case confided to its jurisdiction, the judgment is binding on all. Though existing laws may make the judgments of other courts final within certain limits, or over a particular class of cases, or in- all cases decided by them, the legislature can, by a different regulation, subject all the decisions to be pronounced by such courts to review in some higher tribunal, or the supreme court. But it is incompetent on the part of the legislature to subject a decision, which may be rendered by this court to revision elsewhere. No tribunal exists, or under the constitution, can be called into existence, which can reverse its judgments. Being thus irreversible, its judgments stand, from the necessity of things, as authoritative expositions of the law whenever the same question arises in other eases. * * * The judges of the special court are as much bound to yield to the authority of the supreme court of appeals, as are the judges and justices of the inferior courts, where the question arises in cases in which their decisions are final. The court falls within the class of superior courts, which the legislature may, from time to time, ordain and establish, and assign to it such jurisdiction as the legislature may think proper; and make its decisions final, or subject them to revision, as the legislature may deem expedient. It cannot then be a coordinate tribunal. * * * The constitution does not declare that the right of appeal to the court of last resort, should be allowed in every ease. And as it could not, for obvious reasons, give the right in every case, it made no provision for any case. It declared that the court of last resort should be established, leaving it to the legislature to determine, from time to time, what jurisdiction it should exercise; in the confidence that it would be organized, and its jurisdiction so regulated, as to enable it to fulfill its appropriate functions, and exert, when necessary and deemed expedient, a controlling authority over inferior tribunals.”

The creation of the special court was held constitutional, although it went far beyond the scope of the act establishing our Appellate Court, and did, in effect, apportion the jurisdiction of the Virginia supreme court, just as the act under consideration by this court, in Board, etc., v. Albright (1907), 168 Ind. 564, apportioned the jurisdiction of the circuit court, created by our Constitution.

The same principle was decided in the same way in the case of Floyd v. Quinn (1902), 24 R. I. 147, 52 Atl. 880, in an opinion reviewing the American authorities. The court said: “A constitution does not usually deal with details. * * * Hence nothing is determined by our constitution, beyond the vesting of complete judicial power in the courts and the requirement that there shall be one supreme court. Taken in the order of a convenient review, the defendant’s first proposition is, that the constitution, by creating a supreme court, thereby conferred upon that court exclusive jurisdiction, ex vi termini, to grant new trials, which is the power brought in question in this case, and that this power cannot be taken away or diminished. We do not question that in establishing a supreme court there is something in a name. The provision that there shall be a supreme court clearly implies that it is not to be subordinate to any other court or tribunal, and that it is to exercise the highest of the judicial functions. * * * It is to be a court of last resort. It does not follow, however, that all cases can go to that court, by appeal or petition, and that there can be no final decision except by that court, if a party desires it. This is apparent, both from principle and practice. There can be no claim that the vesting of jurisdiction in the supreme court, in our constitution, is more imperative than that in the federal Constitution. * * * As to the federal Constitution, Hamilton said in the Federalist, No. LXXXI, interpreting this clause: ‘The power of constituting inferior courts is evidently calculated to obviate the necessity of having recourse to the supreme court in every case of federal cognizance. I should consider everything calculated to give, in practice, an unrestrained course to appeal, as a source of public and private inconvenience.’ Chief Justice Marshall, of the United States Supreme Court, a member of the convention to revise the constitution of Virginia in 1829, spoke upon the words relating to the courts, including the court of appeals: ‘ The jurisdiction of these tribunals shall be regulated by law, ’ where our constitution says: ‘ The several courts shall have such jurisdiction as may be prescribed by law, ’ as follows: ‘ The article, as it now stands, leaves the whole subject open to the legislature. They may limit or abridge the jurisdiction of all the courts as they please. If the legislature choose to give them all chancery jurisdiction, or, if they shall think fit, to limit their jurisdiction in common-law cases to a specific sum, the legislature can do so. The whole subject of jurisdiction is submitted absolutely and without qualification to the power of the legislature.’ * * * It is beyond question that all jurisdiction on appeals does not necessarily go to the supreme court. * * A careful analysis of the numerous eases cited by the defendant to the contrary shows that, almost without exception, they depend upon special constitutional provisions which have been infringed by a legislative act. In such a case there can be no doubt. When constitutional provisions are clear they are imperative, both upon the legislator and the courts. When they are not clear they must be construed. But when there are no express provisions upon a subject, they must be left to legislation. * * * The legislature and judiciary are coordinate branches of the government, but both are created by the people in the constitution. The presumption is that the people trust the legislature equally with the courts, and all the more so because the legislature is more directly amenable to the people. If, in the distribution of judicial jurisdiction, the legislature imposes unreasonable or unsatisfactory provisions, the people have it in their power at once to change such provisions by choosing legislators who will give them satisfactory laws. But an unwise use of power does not render the exercise of it, under an express grant, unconstitutional. The question before us is not one of the policy .of the law, but of its constitutionality. * * * The fallacy in the defendant’s argument is in his assumption that all appellate jurisdiction necessarily goes to the supreme court, which, as we have seen, is not so; and, secondly, in his failure to distinguish between the exercise of jurisdiction and the distribution of jurisdiction. Under the constitution the general assembly can exercise no judicial jurisdiction, but it can regulate and distribute it. ’ ’

In the case of People, ex rel., v. Richmond (1891), 16 Colo. 274, 26 Pac. 929, the supreme court of Colorado, in a long and exhaustive opinion, held valid an act creating a “court of appeals” which provided that no appeal to, or writ of error from, the supreme court, should lie to review the final judgment of such court of appeals in actions where the value of the property in controversy did not exceed $2,500. Session Laws of Colo. 1891 p. 118. This act, unlike our Appellate Court act, did not require the court of appeals to follow the decisions of the supreme court. The opinion explains and distinguishes the former decisions of the court in the cases of In re Court of Appeals (1886), 9 Colo. 623, 21 Pac. 471, and In re Court of Appeals (1890), 15 Colo. 578, 26 Pac. 214.

The constitution of Colorado (Art. 6, §§1, 2), with reference to this question, is as follows: “Section 1. The judicial power of the state * * * shall be vested in a supreme court, district courts, county courts, justices of the peace, and such other courts as may be created by law. Section 2. The supreme court, except as otherwise provided in this constitution, shall have appellate jurisdiction only, which shall be coextensive with the state, and shall have a general superintending control over all inferior courts, under such regulations and limitations as may be prescribed by law. ’ ’ (Our italics.)

The court held that the act did not create a court of coordinate jurisdiction with the supremo court, or, unconstitutionally, deprive it of jurisdiction, by making the judgment of the court of appeals final in certain classes of cases. The same objections were made to that act as to the one in controversy here. Extracts from the opinion are as follows: “Authorities need not be cited in support of the proposition that he who asserts the unconstitutionality of a statute must establish beyond a reasonable doubt the conflict or inconsistency which renders it void; it is not enough for him to vaguely insist that the act questioned is obnoxious to some unexpressed intent or spirit supposed to pervade the constitution; he must point out the specific provision or provisions of that instrument transgressed. Another elementary rule to be borne in mind throughout the following discussion is that the constitution operates upon the lawmaking branch of the government purely as a limitation; and that the legislature possesses plenary authority in the enactment of laws except as such authority is expressly, or by clear implication, therein denied. * * * It is asserted that a part at least of the authority given the court of appeals undermines the constitutional supremacy and jurisdiction of the supreme court, and is therefore as fully prohibited by the constitution as if express inhibiting words were found therein. If this contention be correct, it is either because a constitutional right of the citizen is denied, or because some constitutional provision relating to the supreme court or its jurisdiction is invaded. * * * But the present statute does not undertake to create a tribunal superior to or coordinate with, the supreme court. The court of appeals is given no original jurisdiction whatever, and no independent superintending control over other courts; neither is it authorized to answer executive and legislative questions. * * * It is important to remember that a material distinction exists between the supremacy of the supreme court and certain features of its jurisdiction. As has been well said, the supremacy of such a court ‘is to be found, not in the extent of its jurisdiction, or the amount of its business, but in the paramount force and authority of its adjudications.’ * * * A constitutional provision unalterably defining and fixing in all respects such jurisdiction would be a serious misfortune. The constitutional policy seems to have been, not to specify absolutely the extent and boundaries of the jurisdiction of all the courts, but to allow a large legislative discretion, so that the varying demands and the ever-changing necessities of the people may from time to time be adequately provided for. * * * Tlie litigant cannot, as a matter of right, assert that he will come to this tribunal by appeal, for such appeals remain creatures of statute, and, in the absence thereof, do not exist. He cannot claim a vested right to bring his case to this court by writ of error; for, while this writ is in most cases a writ of right at the common law, it may, by statute, unless the constitution forbids, be limited or abolished altogether. * * * Neither of the foregoing constitutional provisions * * * fairly inhibits the legislature from saying, within reason, at what particular stage or in what particular court a specified kind of ordinary litigation shall end. It would seem that when the suitor has had the full, fair and impartial judicial hearing guaranteed by §6 of the Bill of Rights, the constitutional duty of the state is performed, and he ought not to complain. * * * Care was taken to provide that the appellate authority of the court shall be coextensive with the territorial boundaries of the state, and had it been the intention to extend, and forever continue its final appellate power over all litigation, such intention would have been expressed. * * * It may be that, as counsel suppose, the views entertained by the court of appeals in eases within its final supervision will sometimes differ from those promulgated, under like circumstances, by the supreme court. But it is believed that in such instances the court of appeals will voluntarily yield its judgment to that of the higher tribunal. Something must always be trusted to the disposition of judges to act for the general harmony and good, as well as to their honesty and legal discrimination. Should direct contrariety of opinion arise in the same case, however, as counsel seem to fear, an appropriate remedy will undoubtedly be found to enforce the law as declared by the supreme court, and thus vindicate both the interest of the suitor, and the supremacy of this tribunal. * * * Aside from the rule of construction that forbids courts from holding statutes void so long as a reasonable doubt of their validity remains, this or a similar measure is supported by direct constitutional sanction as well as by potent considerations of public and private justice. Section 6, of the Bill of Rights, already mentioned, not only guarantees to the citizen a remedy for every legal injury suffered, but also provides that such remedy shall be enjoyed without delay. It is an open secret that the reviewing branch of our judicial machinery has for years been unable to give this provision full force and effect. * * * We cannot favor the supposition that the legislature may in the future directly or indirectly undertake to deprive this tribunal of its jurisdiction, appellate or original. When that body attempts, if it ever should, to interfere with the existence or supremacy of the court, or to change the nature of its jurisdiction and duties, or to render it an ‘idle and empty pageant,’ the court will undoubtedly decline to recognize such usurpation of authority and illegal action; but until that time arrives, the discourtesy toward another branch of the government will not be committed, of indulging the presumption that a willful effort may be made to thus impair the judicial system and lessen its usefulness. The supreme court might, by disregarding rules of construction, declare all acts of a particular general assembly void, and thus nullify its entire work; but it is highly unreasonable to surmise that this tribunal will ever be guilty of such revolutionary conduct. To suppose that either department of government will make the most vicious and illegal use possible of the powers conferred is to suppose a proceeding subversive of the government itself.” To the same effect see the case of People, ex rel., v. Court of Appeals (1897), 24 Colo. 186, 49 Pac. 36.

The constitution of Illinois provides that the supreme court shall have jurisdiction in four classes of cases, viz.: criminal cases, and those in which a franchise, a freehold or the validity of the statute is involved. Consequently, in the case of Berkenfield v. People (1901), 191 Ill. 272, 61 N. E. 96, which was a criminal case, the court decided that the supreme court could not be deprived of jurisdiction thereof. But in other cases the supreme court of Illinois has repeatedly held that the right to appeal is purely statutory. In the case of Saylor v. Duel (1908), 236 Ill. 429, 86 N. E. 119, 19 L. R. A. (N. S.) 377, the court said: “In this state the right of appeal in any ease is purely statutory, with the possible exception of certain classes of cases enumerated in article 6, §2, of the constitution of 1870, in which the right of appeal from the appellate court to the supreme court in certain enumerated cases seem to be guaranteed by the constitution.” To the same effect is the case of Chicago, etc., R. Co. v. Fisher (1892), 141 Ill. 614, 31 N. E. 406; Young v. Stearns (1878), 91 Ill. 221.

In the case of Crovens v. Atlantic Ave. R. Co. (1896), 150 N. Y. 225, 44 N. E. 968, it was held that a statute making the judgment of an inferior appellate court final in personal injury cases, was valid. The court said: “In determining the right of appeal we must consider that it is not a natural or inherent right, but rests on the statute alone, and may be taken away by the legislature unless conferred by the organic law of the state. The jurisdiction of the court of appeals is designated and created by law, and it has no other. ’ ’

In the case of Hewlett v. Elmer (1886), 103 N. Y. 156, 8 N. E. 387, it was held that “the jurisdiction of the court of appeals’is designated and created by law. It has no other.” Citing Batterman v. Finn (1869), 40 N. Y. 340; Delaney v. Brett (1872), 51 N. Y. 78; People, ex rel., v. Fowler (1874), 55 N. Y. 675.

In the case of City of Portland v. Gaston (1901), 38 Or. 533, 63 Pac. 1051, the supreme court of that state held that “the legislature has the power to define in what eases, and under what circumstances, and in what manner, an appeal may be taken to” that court.

In the ease of Western American Co. v. St. Ann Co. (1900), 22 Wash. 158, 60 Pac. 158, it was held by the supreme court of that state, that while their constitution in express terms provided that that court should have appellate jurisdiction in all cases, this provision was not self-executing, and in a class of cases where the legislature had made no provision for appeal to that court, none could be entertained.

In the case of Fleshman v. McWhorter (1903), 54 W. Va. 161, 46 S. E. 116, it was held that “it is within the power of the legislature to prescribe the eases in which, and the courts to which, parties shall be entitled to bring a cause for review. * * * The law gives one trial on every cause of action. As to some, the judgments and decrees of the trial court may be reviewed; as to others, they may not. There is a remedy for every wrong, but in some cases it is more ample, and may be pursued farther than in others.”

In the ease of Dismukes v. Stokes (1867), 41 Miss. 430, in an elaborate opinion, the court said: “When the legislature has passed laws regulating- the mode of proceeding and limiting the eases and the courts in which the right may be exercised, the rules prescribed must be followed, because they are clearly such as the legislature has 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 writ of error”?

In the case of Sullivan v. Haug (1890), 82 Mich. 548, 46 N. W. 795, 10 L. R. A. 263, quoted with approval by this court in the ease of Lake Erie, etc., R. Co. v. Watkins (1902), 157 Ind. 600, it was held that the right to a review of a judgment of an inferior court is, and always was at the discretion of the legislature. This doctrine has ever been maintained in Michigan, although her constitution expressly gives the supreme court supervising control over inferior courts. Kundinger v. City of Saginaw (1886), 59 Mich. 355, 26 N. W. 634; Harvey v. Pealer (1886), 63 Mich. 572, 30 N. W. 188; Mitchell v. Bay Probate Judge (1909), 155 Mich. 550, 119 N. W. 916.

In a great number of cases this question has been presented in Wisconsin, which has a clause in her constitution granting the supreme court superintending power over inferior courts. In the case of State, ex rel., v. Chittenden (1906), 127 Wis. 468, 107 N. W. 500, the supreme court said on page 509: ‘ ‘ Counsel fail to distinguish between appellate jurisdiction and the right of appeal. The former only is granted by the constitution, the latter is a mere legislative creation. The legislature is supreme in the matter. It may grant the right of appeal from some inferior courts and not from others, or from courts only, or from courts and tribunals exercising quasi-judicial authority as well; or may grant the right in some cases and not in others, and having granted it take it away.” To the same effect is the case of Puffer v. Welch (1910), 141 Wis. 304, 124 N. W. 406.

In the ease of Mau v. Stoner (1905), 14 Wyo. 183, 83 Pac. 218, it was held as follows: “It is well settled that in the absence of a direct constitutional requirement the right of appeal does not exist unless expressly conferred by statute. * * * Unless it is guaranteed as a matter of right in the constitution, the legislature has power to pass laws not only regulating the mode of proceeding, but limiting the eases in which the right may be exercised. * * * Hence it may be said that in both England and the United States the whole matter of appellate review is regulated almost entirely by statute law. ’ ’

The constitution of South Dakota is like that of Michigan. In the leading case of McClain v. Williams (1897), 10 S. Dak. 332, 73 N. W. 72, 43 L. R. A. 287, it was held that “none of the provisions of the constitution prohibit the legislature from limiting’ appeals to a defined class of eases, and prescribing at what stage and in what court ordinary litigagation shall end. The right to an appeal * * * depends upon the statute, when not specially granted by the constitution.” (Our italics.)

The same principle is declared by the courts, in the following cases: City of Chattanooga v. Keith (1905), 115 Tenn. 588, 94 S. W. 62, 5 Am. and Eng. Ann. Cas. 859, with annotations on page 860; Blum v. Brownstone Bros. (1875), 50 Cal. 293; General Custer Min. Co. v. Van Camp (1884), 2 Idaho 40, 3 Pac. 22; City of Paducah v. Ragsdale (1906), 122 Ky. 425, 92 S. W. 13; Hager v. Adams (1886), 70 Iowa 746, 30 N. W. 36; Snoddy v. Pettis County (1870), 45 Mo. 361; Hanika v. State (1910), 87 Neb. 845, 128 N. W. 526; Atwood v. Whipple (1891), 48 Ohio St. 308, 28 N. E. 674; Commonwealth, ex rel., v. Hipple (1871), 69 Pa. St. 9; United States, ex rel., v. O’Neal (1897), App. Cas. (D.C.) 205, 244; Golding v. Jennings (1874), 1 Utah 135; City of Minneapolis v. Wilkin (1883), 30 Minn. 140, 14 N. W. 581; Anderson v. Brown (1855), 6 Fla. 299; Arnsperger v. Crawford (1905), 101 Md. 247, 61 Atl. 413, 70 L. R. A. 497; Leavenworth Coal Co. v. Barber (1891), 47 Kan. 29, 27 Pac. 114. In New Jersey the jurisdiction of all constitutional courts is established as it existed prior to the date of the present constitution. Newark, etc., R. Co. v. Kelly (1895), 57 N. J. L. 655, 32 Atl. 223.

Special express constitutional provisions are found in the organic laws of Arkansas, and some other states.

The authorities on this question might be multiplied almost indefinitely, for in many of the states the question has been considered almost, if not quite, as often as in Indiana.

The eminent counsel who have appeared in this cause and argued against the constitutionality of the act have not cited any authority in conflict with the rule declared in the foregoing cases, except in occasional instances, where the right of appeal to the court of last resort is expressly given by constitutional provision.

Textbook authorities declare the same rule.

“It should be remembered * * * that appeals are exclusively of statutory origin, and that no appeal to either court (Supreme or Appellate) can be maintained except as given by statute.’’ Ewbank’s Manual §58.

“It is laid down by the authorities that the right of appeal is purely a statutory one and this is undoubtedly the general rule. A party who brings an action does not by such an act acquire a vested right to a decision from a particular tribunal.” Elliott, App. Proc. §75.

The majority opinion in this case, squarely overrules more than a score of Supreme Court decisions. Fewer Appellate Court cases have been overruled by this court in a year. It establishes a principle first contended for before the United States Supreme Court in 1803, and by that court then repudiated, and repudiated ever since, when presented, by that court, and by the highest courts of every American commonwealth having a constitution similar to our own. It holds for naught the opinions of Marshall and Hamilton, and other illustrious persons who formulated the provisions in constitutions on which ours is modeled. All this is done because it is believed that the supremacy, or dignity, of this court, is, or may be, assailed by the legislative department of the government. For that reason, also, it leaves the docket of the Appellate Court burdened with probably eight hundred cases, and the clause in our constitution, guaranteeing a speedy administration of justice, an unredeemed pledge. More than that, it fastens a principle on our jurisprudence that forbids relief in the future by any practical method short of amendment to our Constitution; and it must not be forgotten that when such amendment is made, the cardinal duty of the court to administer justice between suitors will be declared in unmistakable terms, and at whatever cost to the rank and dignity of this court.

In my opinion, this act was not intended to, and does not, affect the supremacy, rank or dignity of this court. It only transfers to the jurisdiction of the Appellate Court judgments for money in excess of $6,000, and repeals the supervisory transfer law of 1901, modeled after the certiorari act of Congress of 1891.

In no just sense can the Appellate Court be said, by this act, to be made one of coordinate jurisdiction with the Supreme Court. It cannot overrule the opinions of the Supreme Court. It must follow them. It cannot determine the bounds of its own jurisdiction. This court does that. It can decide no constitutional question. Wills, injunctions, titles to real estate, the validity of statutes, ordinances and franchises, and, in fact, all the most important classes of causes are embraced in the exclusive jurisdiction of this court, and, no doubt, enough is given to keep it busy. If not, the statute gives this court the right to transfer to it for decision all classes of cases appealed to the Appellate Court.

If the decisions of the Appellate Court do not follow those of this court, it may at any time be abolished by the legislature, and the volumes containing its published opinions, owned by the State, and kept in the Supreme Court library, may be destroyed. No such power over this court exists.

In my opinion, the act in question is not only valid, but was designed to afford assistance in a situation calling for immediate relief, and it is unfortunate that such relief must be postponed.