In Re Petitions to Transfer Appeals , 202 Ind. 365 ( 1931 )

CONCURRING OPINION. I concur in the result reached in the majority opinion herein, but disagree with the expressions in the opinion which seem to recognize that jurisdiction of courts in cases on appeal may be made to depend upon whether they are classified as large or important, or inferior, minor or unimportant. In this state we have two courts — Supreme and Appellate — vested with appellate jurisdiction. The Supreme Court was created by our state Constitution and the Appellate Court by an act of the General Assembly. At present, the judgment of the Appellate Court is final except upon a showing to the Supreme Court by the losing party that the opinion "of the Appellate Court contravenes a ruling precedent of the Supreme Court, or that a new question of law is directly involved and was decided erroneously." § 1357 Burns 1926, cl. 2. The foregoing questions are decided by the Supreme Court upon the face of the opinion of the Appellate Court regardless of anything otherwise disclosed by the record. In reAurora Gaslight, etc., Co. (1917), 186 Ind. 690, 115 N.E. 673;Julian v. Bliss (1925), 196 Ind. 68, 70, 147 N.E. 148.

The majority opinion does not indicate any certain standard by which the above-mentioned classification could be made with any degree of certainty which should be attained as near as possible in judicial procedure. The lack of some reasonably safe rule by which jurisdiction of the courts may be readily determined would invoke endless disputes and a variety of opinions, not only by members of the bar, but among members of the appellate bench as well. To inject into our law of appellate procedure anything that would lead to uncertainty of action should be unqualifiedly disapproved.

The several petitions to transfer, in some form or other, challenge the constitutionality of ch. 123, Acts 1929, p. 429. The various contentions, in their last analysis, present the question whether or not a party affected by a judgment in a trial court from which he may appeal, is entitled, as a constitutional right, to have his case reviewed by the Supreme Court.

The thought advanced by counsel in support of their insistence that an appeal once taken from a nisi prius court cannot be stopped by legislative action short of the Supreme Court, in some form, rests in a large measure upon the theory that if the Legislature has power to give the Appellate Court final jurisdiction of cases classified according to subject-matter, the door will be opened for it to abolish the Supreme Court.

I am not ready to concede that any one of the three departments of government established by our state Constitution will so far forget itself as to intentionally exceed its constitutional authority by doing anything not clearly within the prescribed and well-defined limitations of its activities. The Constitution is the supreme law, to be respected alike by the Legislature and by the courts. Each acts independently of the other. The powers of each emanate from the same source and are circumscribed by the one instrument, which, under the sanctity of an oath, the personnel of each department is bound to support. Nor may any one, directly or indirectly, assume or destroy the functions of the others, or interfere with the others in the exercise of its proper authority without violating the supreme law. State, exrel., v. Noble (1889), 118 Ind. 350, 21 N.E. 244, 4 L.R.A. 101, 10 Am. St. 143; Ex parte Griffiths, Reporter (1889),118 Ind. 83, 20 N.E. 513, 3 L.R.A. 398, 10 Am. St. 107. In this state, the authority of the Legislature to make laws and the courts to construe them, I assume will not be questioned. Laws thus enacted and not constitutionally inhibited must stand, regardless of the inducement for their making.

The people of this state, in choosing their own form of government, adopted a constitution, which took effect November 1, 1851, whereby all judicial power of the state was "vested in a Supreme Court, in circuit courts, and in such inferior courts as the general assembly may establish." Art. 7, § 1. In 1881, that section was amended by substituting the word "other" for the word "inferior." The Supreme Court then had and now has "jurisdiction co-extensive with the limits of the state in appeals and writs of error, under such regulations and restrictions as may be prescribed by law." Art. 7, § 4. By these constitutional provisions, the judicial power of this state is in the courts, and the territorial jurisdiction of the Supreme Court thus fixed is not subject to change by the General Assembly. State, exrel., v. Noble, supra. The subjects — appeals and writs of error — over which this court is given jurisdiction, are subject to "such regulations and restrictions as may be prescribed by law." There must have been a reason for this qualifying clause, which, to my mind, is clearly apparent. By § 2 of the same article, the number of judges composing the Supreme Court was limited to not less than three nor more than five. The makers of the Constitution had in mind that should the time come when the number of judges so limited could not do the work assigned to them within a reasonable time consistent with § 12 of the Bill of Rights, the General Assembly would be in a position to remedy the situation by establishing "other courts" and vest them with such appellate jurisdiction as the exigencies of the business in the Supreme Court might demand. The Constitution, fairly interpreted, provides for only one Supreme Court in this state, and giving the word "supreme" its ordinarily understood meaning — "highest in authority or power," Webster — it follows, as a natural sequence, that "such other courts as the General Assembly may establish" must be treated as inferior in power to the Supreme Court. The power of the General Assembly to establish "other courts" having appellate jurisdiction must necessarily carry with it the authority to vest jurisdiction in such courts to decide the questions presented finally, for the reason a litigant has no constitutional right to have his case decided by any particular court other than one of competent jurisdiction. Lake Erie, etc., R. Co. v. Watkins (1902), 157 Ind. 600, 605, 608, 62 N.E. 443.

The clause "under such regulations and restrictions as may be prescribed by law" (§ 4, supra) in no manner affects the power or jurisdiction of this court. It merely reserves the right to regulate and restrict appeals. It has to do with a matter which affects the people — remedy of litigants.

The abolishment of writs of error in this state by the Legislature leaves the statutory right of appeal as the only method of reviewing questions of law in cases where an appeal is allowed to a court having appellate jurisdiction, but the right to come to this court is a question for the Legislature, for, as said in Lake Erie, etc., R. Co. v. Watkins, supra: "While it is certainly true that the legislature under this provision of our fundamental law (Art. 7, § 4) 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."

As I am at present advised, I would have this court declare that our General Assembly has the power to so regulate our appellate procedure that causes on appeal may be classified according to subject-matter involved, and that jurisdiction be determined accordingly for final disposition in the court to which the class is assigned, reserving to the Supreme Court, however, all appealed cases at present classified by our Code (§ 1356 Burns 1926, cl. 1) wherein there is "in question, and such question is duly presented, either the validity of a franchise or the validity of an ordinance of a municipal corporation, or the constitutionality of a statute, state or federal, or the rights guaranteed by the state or Federal Constitution." The causes thus classified in case of appeal should be taken from the trial court direct to the Supreme Court for the reason they naturally involve questions of a public nature and ordinarily affect the public generally, and should be "finally determined by this court, and by this court alone." City of Indianapolis v. Navin (1897),151 Ind. 139, 158, 47 N.E. 634, 51 N.E. 80, 41 L.R.A. 337. Furthermore, as the Supreme Court, under our Constitution, must be regarded as the highest judicial tribunal having appellate jurisdiction within this state, it must be regarded as having the power not only to determine its own jurisdiction, but to determine finally the jurisdiction of other courts in this state.Pittsburgh, etc., R. Co. v. Peck (1909), 172 Ind. 562, 577, 88 N.E. 939.

For further discussion of the principles underlying the decision which should be considered affecting the questions here involved, see dissenting opinion in Ex parte France (1911),176 Ind. 72, 104, 95 N.E. 515.

In my judgment, the prevailing opinion in Ex parte France, supra, and in Curless v. Watson (1913),180 Ind. 86, 102 N.E. 497, should be overruled.

Travis, J., concurs.