
    Titus v. Latimer.
    Neither the lapse of time nor the practice of the courts can vindicate the exercise of jurisdiction under acts which are repugnant to the Constitution.
    The Supreme Court and the District Courts are essentially the creatures of the Constitution. The Legislature can neither add to nor take from their jurisdiction. Where the Constitution has not prescribed any mode in which the jurisdiction shall be exercised, it is competent for the Legislature to do so. But where the Constitution presciibes the mode, the Legislature cannot prescribe a different mode. (Note 74.)
    There is a very obvious distinction between appellate power and the power to exercise a general superintendence and control over inferior jurisdictions. Hence the 10th section of the 4th article of the Constitution, which confers the power on the District Court ana tne judges thoreof to issue all writs necessary to enforce their own jurisdiction and to give them a superintendence and control over inferior jurisdictions, does not confer appellate jurisdiction. (Note 75.)
    The acts of the Legislature which assumed to give an appeal from Justices’ Courts to the District Court declared unconstitutional.
    Latimer sued Titus in a Justice’s Court and obtained judgment. Titus appealed to the District Court. On motion of Latimer the appeal was dismissed upon the ground that the District Courts had no jurisdiction of appeals from Justices’ Courts.
    Morgan, for appellant.
    Morrill, for appellee.
   Lipscomb, J.

This cause originated before a justice of the peace, and was takeu by appeal to the District Court, and it was in that court dismissed for want of jurisdiction, from which decision an appeal was taken and brought to this court for revision. The case lias not been argued, but we are informed that tlie decision of the court below rested on the construction of the 10th section of the IVth article of the Constitution of the State, and it is not contended but that if the Legislature had power under the Constitution to give an appeal, it has been given. The 10th section of ¡he IVth article, the only one to which it is said we can resort for the jurisdiction of the District Court, is in the words following:

“The District Court shall have original jurisdiction of all criminal cases; of all suits in behalf of the State to recover penalties, forfeitures, and escheats; and of all cases of divorce; and of ail suits, complaints, and pleas whatever, without regard to any distinction between law and equity, when the matter in controversy shall he valued at or amount to one hundred dollars, exclusive of interest; and the said 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. And in the trial of all criminal eases the jury trying the same shall ibid the amount of punishment to be inflicted or fine imposed, except in capital cases, and where the punishment or fine imposed shall bo specifically imposed by law.”

It was supposed that whatever jurisdiction could rightfully be exercised by the District Court must he derived from the section just cited, and, from the; language in which it is expressed, that it could not take cognizance of anything done in an inferior jurisdiction except in the modes therein directed, and that was to he by the issuance of some writ either by the court or by one of the judges thereof; that the provision contained in that part of the ninth line of the section, “And the said courts and 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,” excludes all presumption that it was intended that the District Court should exercise jurisdiction in any other mode; that appeals were not within the intention of the framers of the Constitution. The correctness of this construction is supposed to receive confirmation from the 15th section of the same article of the Constitution. It is in the words following-:

“Inferior tribunals shall be established in each county for appointing guardians, granting- letters of administration, for settling the accounts of executors, administrators, and guardians, and for the transaction of business appertaining to estates; and the District Court shall have original and appellate jurisdiction and general control over said inferior tribunals, and original jurisdiction and control over executors, administrators, guardians, and minors, under such regulations as may be prescribed by law.”

The whole of this section is manifestly limited in its operation to the establishment and jurisdiction of the Probate Court, over which the District Court was given, in express terms, appellate jurisdiction. The inference is supposed to be fairly deducible that, as it was not expressed in relation to any other inferior tribunal, it was not intended that it should extend to them'; that the expression of one was the exclusion of the other.

I have thus, in the absence of argument on this interesting question, endeavored fairly to present what is believed to be the opinion of the judge of the District Court and the grounds on which it is based.

The importance of the question presented is sensibly felt and fully and frankly acknowledged; and it is a matter of serious regret that it should be suddenly sprung upon the court without the benefit of having it discussed at the bar. it is now near four years since the Legislature, at its first session, proceeded to organize Justices’ Courts and define their jurisdiction, and, among other things, gave the right of appeal, as a matter of course, from their decisions to the District Court. The same Legislature, at the same session, passed an act organizing the District Courts, and another regulating judicial proceedings in the District Courts. In the last the manner in which appeals from justices of the peace are to be tried is defined and expressly provided for. In all the intervening- time since those acts were jpassed they have been acted on and judicially recognized as valid without having ever before been questioned. If, however, they are repugnant to the Constitution and could not give jurisdiction, neither the lapse of time nor the practice of the courts can vindicate the exercise of such jurisdiction.

Justices of the peace and other inferior tribunals are recognized by the Constitution; the extent of their jurisdiction, however, is left wholly to the Legislature. But the District Court and the Supreme Court, both as to their institution and jurisdiction, are essentially the creatures o£ the Constitution. On those courts the Legislature can neither confer nor take away jurisdiction. If the jurisdiction given by the Constitution cannot be exercised because the mode has not been expressly provided for in the fundamental law of their creation, it would be competent for the Legislature to regulate the maimer in which it should be exercised. But if the mode had been expressed contemporaneously, and by the same authority that created the jurisdiction, it would not he competent for the Legislature to direct a different mode. The, Supreme Court is exclusively a court of appellate jurisdiction. The Constitution has conferred on it no original jurisdiction, nor can the Legislature confer any such, because it has been created by the Constitution an appellate tribunal only. Tiie District Court is a court of original-jurisdiction, and this original jurisdiction is not derived from nor dependent on the Legislature. All that can be done by the Legislature is to regulate the maimer m which its jurisdiction shall be exercised. If the Constitution has not given it appellate powers it is not competent for the Legislature to do so. There is a very obvious distinction, to my mind, between controlling an inferior jurisdiction and the exercise of an appellate power: the former can be exerted to prevent action; the latter requires the act to he done before it can be appealed from. Hence, when the 10th section of the IVth article of the Constitution confers the power on the District Court and the judges thereof to “issue all writs neeessaiy to enforce their own jurisdiction and to give them a general superintendence and control over inferior jurisdictions,” it’does not, from necessity or by reasonable inference, give them appellate jurisdiction. If it was intended to withhold general appellate jurisdiction, and yet to give a control over inferior jurisdiction, it would have been difficult to have expressed that object in more appropriate terms than have beeu used. A control of the acts of those tribunals is expressly given by the issuance of writs very familiar to courts of general original jurisdiction. The writs of certiorari, mandamus, quo warranto, injunction, and prohibition, would afford ready means of exercising such control. liad it been intended that, in addition to the use of these writs, a general appellate jurisdiction should bo exercised, it is certainly most probable that it would have been so expressed iu the 10th section, as it is in the 15th section, in giving jurisdiction over the Probate Court.

Believing .that the power to give jurisdiction by the act of the Legislature cannot be derived from the Constitution, there is no error iu the decision of the court below in dismissing the appeal.

Judgment affirmed.

Wheeler, J.,

dissenting. The Constitution, (art. 4, sec. 10,) in prescribing the jurisdiction of the District Courts, says: “The said 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 clause of the Constitution, in my judgment, invests the District Court with appellate jurisdiction in respect to the courts of justices of the peace and all others which sustain to the District Court the relation of inferior jurisdictions. The power of “general superintendence and control” necessarily presupposes and implies the power to revise, and the power to revise is appellate jurisdiction.

I do not doubt, therefore, that the District Court, is invested with appellate powers or jurisdiction over inferior tribunals. But the powers of a court or its jurisdiction, and the means of the exercise of those powers or of acquiring jurisdiction of a particular case, are distinct subjects; and although the Constitution has authorized the District Court to exercise its jurisdiction by means of writs, I do not think that provision exclusive in its character or intended to operate as a restriction upon the power of the Legislature to enable that court to acquire cognizance of causes in another mode or by the ordinary one of appeal. If the District Court possesses general appellate powers over inferior jurisdictions, as I think it clearly does, I cannot doubt that it is competent for the Legislature to provide the means and manner of its exercise. I cannot think the designation of one mode in the Constitution could have been intended to be exclusive of the power of the Legislature to prescribe another or alternative mode. I therefore cannot concur in the opinion that the law giving an appeal from a Justice’s Court to the District Court is unconstitutional. '

Not deeming it of any utility, however, now to discuss the question, I content myself with this mere statement of my opinion. But 1 may be permitted to add, that if it be true that the District Court does not possess an appellate jurisdiction over justices of the peace, it follows as a necessary consequence that it cannot revise or re-examine their proceedings when brought before it ,by the writ of certiorari or in any other manner, for to revise of re-examine what has been decided in the courts below is the exercise of appellate jurisdiction. It can be nothing else. The District Court may. it is true, control inferior tribunals by the writs of mandamus, injunction, prohibition, &c., without proceeding to reverse or affirm their judgments. But without appellate jurisdiction the power to issue the writ of certiorari to bring eases before the District Court would be quite useless and nugatory; for when the court shall have brought a case before it by that writ, it cannot, without the exercise of appellate powers, proceed to revise the judgment. That would be to exercise the very power which is denied to the District Court, and consequently to transcend the limits of its constitutional authority.

Noth. — The Supreme Court of the United States has decided (hat the issuing of a mandamus when directed to a court, is tho exercise of appellate jurisdiction. C5 Pet. R., 193; 14 Pet. R., G08, G00-) And upon similar reasons it must, I apprehend, be held that the issuing of any writ which tho District Court may issue to exercise its “general superintendence and control” over inferior jurisdictions is also tho exercise of appellate jurisdiction. (12 Pet. It., 622; 4 Cr. R., 100-102; 3 Pet. R., 202; 7 Pot. R., 673; 14 Pet. R.. 021.) Hence the power to issue these writs must be an appellate power or, in other words, appellate jurisdiction.

Again, the words “superior” and “inferior,” when applied to courts, are in general descriptive of tho jurisdiction which they sustain in reference to each other, whether appellate or its correlative. Hence, when in reference to and as descriptive of their immediate relation to the District Courts others are called “inferior jurisdictions,” it is implied as strongly as if exproseod that the relation which the District Court sustains to those “ inferior jurisdictions” is that of a superior or an appellate court.

Note 7-1. — Thomerson v. The Slate, 8 T., 172.

Note 75.- — iiamman v. Lewis, 3iT., 474.

But what jurisdiction will the District Court exercise in revising the judgment of a justice of the peace brought before it by certiorari if it be not appellate jurisdiction? It certainly will not be original jurisdiction, for by the Constitution its original jurisdiction is limited to cases where the matter in controversy amounts to one hundred dollars. Has the District Court any other than original if it has not any appellate jurisdiction? Is it not a misapplication of terms to say that a court which has not appellate jurisdiction can in any manner revise or re-examine the proceedings of another court?

When in constituting the District Court, and in reference to its jurisdiction over inferior tribunals, the convention used the words “ a general superintendence and control,” they did not, I apprehend, use them in that narrow and limited sense which is synonymous with the mere control which a court may exert by the means of simply mandatory process, but they used these words in that broad and liberal and comprehensive sense which was understood and intended to confer upon that court general revisory or appellate powers over all inferior jurisdictions. This, to my mind, is so perfectly clear from the comprehensive powers conferred upon the District Court, and from the whole frame and structure of our judicial system, as not to require, nay, as scarcely to admit, of illustration.

And if the contemporaneous understanding and construction of every department of the Government and of the legal profession, both bench and bar, are entitled to weight in any case, or if there be any case in which Ihe'maxun of '■'•communis error facit jus’’’1 can have a proper application, this, it seems (o me, is that case. But I would not invoke that questionable maxim. The right I think clear upon principle. And if I ever thought it doubtful, I should feel it a duty to yield that doubt in favor of the constitutionality of the law, believing it a sound and safe rule, commended to our approval by (he authority of the most eminent judges and tiie most enlightened courts, not to declare a law unconstitutional unless it is clearly so. I propose, however, merely to state my opinion — not to argue the question.  