
    David Thomas v. The State.
    The Constitution, in making the grant of jurisdiction to the District Courts to control inferior jurisdictions, not in general terms, but by the issue of writs for that purpose by said courts or the judges thereof, confines the exercise of the supervisory power of the District Courts to those cases in which it is believed by the court or judge thereof Unit wrong has been done by the inferior tribunal; consequently the Legislature cannot provide for the removal of a cause from a Justice's Court to the District Court without a previous exercise of the judgment of t-lie District Court or judge thereof, as contemplated by the Constitution; and therefore the act of February 10th, 1852, which attempted to make a certiorari a writ of right, issuable in specified cases by the clerks, was unconstitutional.
    This was a prosecution for forcible entry and detainer in a Justice’s Court. The defendants, Thomas and Chapman,'wore tried in said court by a jury, and defendant Thomas fined $50.00 and Chapman $10.00, and costs. The defendant, Thomas, obtained a certiorari from the clerk of the District Court, under the act of 1852. In the District Court the district attorney moved to dismiss the certiorari for reasons which appear in the argument, which motion the district judge sustained.
    
      E. B. Peck, for appellant.
    I. The first point raised by the district attorney in District Court, on motion to dismiss certiorari in this cause, and which motion district judge granted, to wit, “that the Law under which the certiorari “was granted is unconstitutional,” is erroneous, for the following reasons:
    1st. A law is unconstitutional only in the following particulars:
    1. Where it contravenes tlio letter and spirit of the Constitution. '
    2. Where it creates rights and confers powers directly or impliedly forbidden by that instrument.
    
      This law does not contravene the letter or spirit of the Constitution, nor does it create any new rights or confer any new powers on the District Court, hut only declares the manner in which said court is to proceed in the exercise of powers conferred upon it by the Constitution. (Sec. 10, Const., Judicial DEPARTMENT; Yol. 4Laws 1832, p. 00.)
    H. In relation to the second objection, “That tlie clerk of the District Court “had no authorhy to issue said writ, because the same was not authorized by “ any judge of the District Court having jurisdiction,” the defendant’s counsel contends,
    1st. If tlie, law of the last legislature is constitutional, the clerk has such authority. If unconstitutional, tlie issuance of the writ is without the positive authority of statutory law, nevertheless it was properly issued for the following reasons:
    I. The issuance of the writ is a ministerial act; it requires the exercise of no judicial powers or functions; it is analogous to the citation. The former acquires jurisdiction over the inferior court, the latter over the person ; it is only the exercise of powers given to the court in order to acquire the right to exercise the jurisdiction given to the District Court. It being a ministerial act, any officer of the court, designated by tlie Legislature or not, has a right to perform that act, unless tlie exercise thereof is‘confined by the Constitution to some particular officer of that court. In tlie issuance of process tlie law makes _ no distinction between the act of the clerk and the act of the court. It is the 'act of the court. The expression, “and the said court or the judges thereof,”in section 10, Constitution, is not to he confined exclusively to the judges. The term court includes within its signification not only the judge or judges, but also the clerk. (Bonv. Diet., COURTS.)
    2. Tlie Constitution does not coniine tlie issuance of the writs to a particular branch or officer of the court, or require tlie previous allowance of a judge. It invests the court with power by means of writs to enforce its supervisory power, given by section 10 of Constitution, over inferior tribunals, a right which it possesses at common law by virtue of the original jurisdiction thus conferred. The granting or creation of a right carries with it power to acquire that right.
    Iir. As to tlie third objection, that the1 ‘ petition does not set forth any grounds “for the issuance of the writ.”
    1st. There is no provision of law requiring it should he clone.
    2d. If tlie 1753 (07) article, Hartley’s Digest, is not in effect repealed by the law of the last Legislature, and is still in force and effect, it cannot be contended that it applies to criminal proceedings, hut outy to civil cases. The language of this section and the provisions therein contained, in relation to tlie execution of bond to adverse party to double the amount in controversy previous to the issuance of tlie writ therein mentioned, clearly settles the char* acter of proceedings to which this section applies.
    IY. In relation to the fourth objection, that these proceedings “are in the “nature of au appeal from Justice’s Court,” tlie defendant’s couusel assumes the following:
    1st. That the premises are erroneous. They are not in effect an appeal. The distinguishing feature in eases of appeal anti certiorari consists in the mandate of the writ and tlie character of the proceedings commanded to he certified, and not tlie manner of disposition of the cause in tlie superior court. In the former, the whole proceedings in the cause are to be certified; in tlie latter, nothing hut the record. This writ only commands the latter. This is a oom-mon-law proceeding. Criminal proceedings at common law were removed only by certiorari and writ of error. Appeal is a proceeding created by statute. Criminal cases, at common law, where removed by certiorari, were always tried iu superior court at bar or nisi prius. (Cliitty, Crim. Law, 4th Amer. Ed., 371.)
    2d. It does not appear upon the face of the papers to he an appeal. It does not appear that defendant’s counsel asked or claimed a right of trial ele novo 
      in the District Court; therefore the objection, if legal, was premature, and without force. The counsel for the State could not raise any object ions except [for matters appearing upon (he record. The record does not show proceedings to be an appeal, and therefore this objection is founded upon an unwarrantable assumption.
    Y. There is no rule of law which would authorize a court to declare an act of the Legislature unconstitutional unless it be clearly so. (1 Tex. K., 350.)
    YI. The writ of certiorari was properly and legally issued, notwithstanding the law of the last Legislature may he. unconstitutional. The defendant was entitled to it as a common-law writ. It was sued out in accordance with common-law practice, and the Constitution contains nothing in derogation of that right or in conflict with that practice.
    1st. Because the District Court is a court of original jurisdiction, having general superintendence and control over inferior jurisdictions, (see. 10, Const..,) and as such possesses supervisory power’s over Justice’s Courts, and by virtue, of those powers candes with it the right to enforce its jurisdiction by writ of certiorari. (Chit. Grim. Law, 4 Amer. Ed., 371, 374, 370; Bacon Abr., CER-TIORARI, 1S2, K.; Barb. Crim. Law, 341, 340 ; 0 Wend. B., 504; Hale’s Pleas of the Crown, 209 and 210; 20 Johns. B., 430; 10 Id., 49; 14 Id., 323; art. 126, Hart. Dig’.)
    ■ It was sued out in accordance with common-law practice. It could issue after verdict and conviction as well as before. (Bao. Abr., 182, K., Cer-tiorari.)
    It was not necessary it should he applied for upon affidavit, or that authority of judge should he obtained previous to its issuance. (7 Cow., 103 ; Id., 538 ; 4 Id., 91; Id., 533; 21 Jac., 1, chap. 8, secs. 6, 7, D., and 5 W. & M., pp. 168, 109; Bac. Abr., ed. of 1848.)
    ■ This is a case of forcible entry and detainer at common law, and therefore the writ was grantable of course. (0 Johns. B., 334.)
    This is a common-law offense; it is unknown to our statute. Therefore the common-law practice applies. (Art. 125, 126, 127, Hart. Dig.) .
    
      Attorney General, for appellee.
    I. Did the District Court err in dismissing the certiorari obtained by defendants? for the action of the District Court in that regard was its only action iu this cause, and is, of course, all that can. come under revision here. We insist that this action was right, upon two grounds:
    I. That there are no sufficient reasons stated in defendant’s written application for the writ, as shown in the district attorney’s second cause for dismissal. The act concerning writs of certiorari, &c., (4th vol. State Acts, p. 60,) upon Which alone defendants rely, requires in its 7th section that snob applications as this should show “ that he (the party convicted) believes that injustice iias “ been done, him by the judgment,” &c. This application contains neither this nor any equivalent allegation, but instead it says that “said conviction ought “ not to be had, and that the said defendants ought to have been acquitted in the trial of said cause.” If this new certiorari act be constitutional, it is certainly a very easy law to follow, and the very little it exacts of applicants ought to be said and done.
    H. That tlie certiorari act in question is not warranted by the Constitution.
    It is a familiar subject of reflection to this court that our District Court is one of the very few inferior courts whose jurisdiction and powers are limited and fixed by the Constitution, except their probate jurisdiction. They are all stated, in general terms, in section 10, article 4, of that instrument. The only power left to the Legislature is to regulate their exercise. When this provision was framed it was known that the common law was, in general, the law of the land. The State Constitution found it so, and so left it. When this power was given t.o the District Court or the judges thereof, “to issue all writs necessary “ to give them a general superintendence and control over inferior jurisdic- “ tions,” it must have been intended to accord in its exercise with the system of juriqur.iLnee in force, and intended to be left ;;o — the common law; and t ■'iii1.','' tiie meaning of the clause in question by that system, even courts or judge.-. never issue or grant remedia 1 writs or writs to control inferior courts, unless upon applications, slating in a manner suited to llio exercise, of judicial disercl ion reasonable grounds for their interference, and this act requires, even for the cm.-¡deration of the clerk, no 'acts or grounds known to legal practice to be stated in 1 lie application. It is sufficient for ¡lie purposes of this case to refer to (Ii ■ tille OBRTIORABI, 1 Chit. Grim. Law, cap. 9, p. 371. el seqand especiall,’. to mode of applying for certificate by defendant, stated in margin at pages 3°.:?-3.
    lint tiler,; is another view to be taken of this point, which we deem conclusive in favor of appellee. The power to ‘‘issue” or grant the writs in question is eFurly judicial, as is every power imparted in this section; audif this can he con ¡erred upon the clerks, so can every other contained in it, and, the courts or judges can be dispensed with as useless and the cause of unnecessary expense. As clearly can these clerks be authorized “to have original jurisdiction of criminal casos,” &c., &c., for as clearly are these powers granted to the “District Courts ” or “judges ” as the one now claimed for the clerks, and no more so. In the very same manner and in the very same clause, with the power under consideration, the District Courts or their judges are authorized to “is-me v> rim necessary to enforce their own jurisdiction; ” that is, to grant or order sf¡ ' h writs to issue. If this act be constitutional, the clerks could with equal propriety he authorized to exercise this judicial function, and indeed any or all others intended to be conferred only on the “District Courts” or “judges “thereof,” and so conferred in express terms. It may be assumed as universally truc, riiat in all our American Constitutions (.lie graut of a power to any department- or officer of Government is the exclusion of it from all others, unless it he (.•¡‘■.'currently granted to several. I-Iere, “ expressiouniits est exclusio alteráis, ” most emphatically and precisely. If the power claimed by this act can be exercised by the Legislature, they bad better authorize their clerks to legislate. It would save much time, breath, and money, if attended with no oilier public benefit. To decide this question it is only necessary lo determine whether or not the power in question is judicial, for if it be, all must agree that it cannot be conferred on the clerks-. That it is judicial, we insist, because the Constitution which creates it makes it so by giving it to the “ District Courts” or “judges thereof,” in express terms; and'this excludes it from all other persons, tribunals, or officers, or else the Legislature can graut away all the other jurisdictions of the District Courts, and thus abrogate a tribunal which the Constitution lias expressly created witli unusual particularity. There can he no mistake about the meaning of the term “issue” in the clause under consideration. It is not used in the mere clerical sense, for if it had been it would have been given to the clerk (who is provided for in the very next section, 11th,) and not to the “District Courts” or “judges thereof.” It means “ grant ” or “ order ” and beiug conferred on “courts” or judges, from its very character and nature, it could not have been intended to be. exercised even by them “ as a matter of course ” but only in conformity with well-understood practice, “for good cause shown.” But after all, this act is intended to reach the force of “Titus v. Latimer.” I have no personal objection to its success; but can it succeed without opening a door for other and more dangerous interferences with constitutionally-granted and defined powers and jurisdictions? This court must answer.
    There is really no other question in this case. I care not how irregularly the conviction may have been obtained before the j ustice of the peace, if the District Court acquired no jurisdiction of the cause by force of the certiorari, it had none otherwise; and this court, in such a case, has decided that it would have no jurisdiction if that court liad none.
    
      J. A. Great., also for appellee.
    The Constitution, 10th section, judiciary department, giving jurisdiction to the District Court, provides among other things, that “ the said (District) Courts, or the judges thereof, shall have “power to issue all writs necessary to enforce their own jurisdiction, and to “give them a general superintendence and control over inferior jurisdictions.” This court has decided, under this clause of the Constitution, that there is no appellate power given by the Constitution to the District Court over the judgment of a justice, of tito peace; that the power must be exercised, according to the Constitution, by means of such writs as may issue from tire courts or (he judges thereof. The question then arises, who under the Constitution are meant hy “ the said courts? ”
    A court, is a forum where justice is administered. It is composed of tiie judge and such ministerial officers as are necessary to record its decisions and enforce its orders. And such is the distinction taken in the Constitution; because the judges of the said courts are given the same, power by means of writs to control the' jurisdiction of inferior tribunals which is possessed by tiie court itself. The object in giving the judge the same power was to afford a more speedy remedy to tiie party injured than that of the court itself, which could be only periodical; it was to make the means of relief more extensive and convenient.
    It cannot he pretended that the Constitution ever intended to make tiie word District Court' mean tiie clerk thereof; it gave no power to him, hut to the court alone. If such be the construction, then the clerk has power, without a ■flat of tiie judge, to issue an injunction, grant writs of mandamus, prohibition or other mandatory writs, the granting of which must ho tiie act of judgment by a superior over an inferior.
    Tiie. words “control and superintendence” imply power. The exercise of power is an act of judgment hy a superior. Under tiie law of 1832, no exercise of power is provided for; on the contrary, the Legislature commands the clerk of the District Court to issue tiie writ without any judgment of the superior; without the previous exercise of constitutional power.'
    In the Constitution, the issuance of the writ is an act of judicial power. Tills act of power must he exercised according to the provisions of the Constitution, and hy an officer having constitutional authority. The issuance of the writ by any other person is a void act.
    This case is an act of appellate and not of supervisory power. The true distinction between them is, that an appeal is the result of the act of tiie party himself, under tiie regulations prescribed by law. And the exercise of houtrol and superintendence by means of writs is the action of the court itself, upon the application of the, party. One is the act of the party, and is a matter of right; the other is tiie act of the court, and dependent on its judgment.
    In this case the party, under tiie law of 10th February, 1852, claims tiie benefit of tiie writ of certiorari as a matter of right; claims his trial de novo, as such, because tiie law only requires him to state that “lie believes that injustice “has been done him.” This is clearly an appeal. No discretion is left to tiie judge or the.court in granting tiie writ, which grant is the act of power conferred in tiie Constitution on the court. Nor is there even any discretion left to the clerk,.except the approval of the bond. It is .strictly a ministerial act, to he performed by him at the instance of the party aggrieved. Tims it is evident that the Legislature lias attempted to usurp power which, in the Constitution, is alone conferred in the judiciary; inasmuch as it assumes to decide wliat shall constitute sufficient grounds for the issuance of such writ.
    We take it as clear that this was an appeal. It matters not hy wliat name the Legislature may choose to call it. The operation and effect is the same as an appeal, and it is wanting in that most essential quality, an act of judgment, to constitute it a supervisory writ from tiie District Court. Assuming, then, that tiiis is iu effect an appeal, it is obnoxious to the Constitution, as defined hy this court in Titus v. Latimer. (5 Tex. B., 433.)
    
      The argument of that ease is, that the District Court, being' a creature of the Constitution, could not exert any power except what was conferred upon it by that in<t nunent; that the Legislature could neither confer nor take away its jurisdiction; that, if the jurisdiction cannot be exercised because the mode has not been expressly provided in the fundamental law, it would be competent for the. Legislature to regulate tiie manner in which it should be exercised; but if the''mode lias been expressed contemporaneously by tiie same authority which created tiie jurisdiction, it would not be competent for the Legislature to direct a further mode; and further, that tiie exercise of jurisdiction over justices of tiie peace must bo by tiie issuance of some writ by tiie court or by one of tiie judges thereof; that appeals were not within the intention of (lie framers of the Constitution.
    It seems clear from principle aud the authority of tiie above-cited case that there is no error in tiie judgment of the District Court, and that the ease ought to be affirmed.
   Livscoiuu, J.

The only point presented for our consideration in this case is on tiie. coustilulionality of the act of the last Legislature conferring on the clerks of (he District Court authority io issue writs'of certiorari to bring a ease from a .1 usi ice’s Court into the District Court. In the well-considered decision of this court in the case of Titus v. Latimer, 5 Tex. R., 433, it was held that the act of the Legislature giving an appeal to the District Court from a judgment oí a just ice'of the peace was repugnant to tiie Constitution, (see 10th section, .) uurorAii DEPARTMENT,) and was therefore void. We are fully satisfied with tiie, correctness of that decision, nor shall we attempt its vindication by any additional reasons to those contained in our opinion given at tiie time the decision was made. That it was to evade the effect of this decision the act of the Legislature at its last session was passed, wo are fully aware. From some real or supposed inconvenience attending the procuring the writ of certiorari from tiie. District Court, or one of the judges the'rcof, the authority was attempted to be conferred on the clerks of the'District Court; and it seems that the Legislature intended that it should be a writ of right, and should not be a question for judicial action, whether it should be issued or not. Now, if the Constilution had, in conferring tiie controlling jurisdiction upon the District Court been silent as to the mode or manner in which it should be carried into e.fieetive operation, it would scarcely be doubted that it would have been competent for tire Legislature, in regulating tiie mode in which the jurisdiction should be brought to act upon the subject, to have employed the writ of certiorari as the medium, with such modifications of its common-law attributes as might have been thought expedient; but this is not the case. The Constitution, in making the grant of jurisdiction to tiie District Court to control inferior jurisdictions, is not silent, but directs that, it shall be by the use of a writ to issue from the court or one of its judges; and by rejecting tiie term appeal and using that of control, clearly indicates that it is not a writ of right, but dependent on tiie judicial discretion of the court or one of tiie judges thereof; because it would not control or superintend the judgments of the, inferior jurisdiction, unless it should be believed by the court or judges exercising such control or superintendence that wrong liad been done by tiie inferior tribunal; and it cannot bo supposed that they were to exercise this control and superintendence wantonly and capriciously, without regard to what had been done, right or wrong. The clear meaning of the Constitution is, that whatever wrong has been done to the litigant in tiie inferior tribunal should be righted, on showing to tiie satisfaction of tiie District Court or one of its judges that such wrong lias been inflicted. The term District Court, as used in the Constitution, means the court in session for tiie exercise of its judicial functions, and cannot moan a ministerial officer of tiiat court; yet, by the act under discussion, (lie Legislature assumes to confer upon such ministerial officer a judicial function given by the Constitution to the court or one of the judges thereof. By including the last it was designed to enlarge the remedy for the redress of a wrong by enabling the injured' party to make his application to one of the judges if the court was not in session.

If the Legislature were permitted to confer one judicial attribute upon the clerks, they could another, and, in the language of the Attorney General, authorize him to issue injunctions, quo warranto and mandamus, and thus to strip the District Court or judges thereof of their highest judicial functions and transfer the same to a mere ministerial officer. It is unpleasant, at all times and under any circumstances, that there should be any collision between any of the departments of our State Government; but it is affectation to say that the judges should never decide an act of the Legislature to bo unconstitutional, unless they clearly thought it to be so; and it means nothing more than that unless the'judge believed the act to be contrary to the Constitution ire ought not to decide that it is so. No honest judge, with ordinary capacity, would do so ; therefore tho caution against it ought never to have found a place in a law book.

If I believe that so much of the act of the Legislature giving the right to the clerk of the District Court to issue writs of certiorari is repugnant to the Constitution, I aurbound to say that it is void; audit is hoped,'-if that time ever should arrive when the judges will either want integrity or nerve to declare an act of the Legislature void on this ground, when they honestly think it to be so, that the time is removed far distant in the future. Believing, as we do, that the act, so far as it assumes to confer such powers upon the clerks of the District Courts, is repugnant to the Constitution, we affirm the judgment of the District Court.

Judgment affirmed.  