matical refinements." When this court knows, as it does here, what the people intended by the 1881 amendment, such intent, after the lapse of 32 years, should not be thwarted by some technical dictionary definition. Moore-Mannsfield Const. Co. v. Indianapolis, etc., R. Co., 101 N. E. 296.

In the year 1877, when the population and wealth of the state were very much less than now, it became evident that it was a physical impossibility for this court to determine all the causes appealed to it. While it had repeatedly been held that final jurisdiction, in appeals from other than circuit courts, might be conferred on a court other than the Supreme, it was not then competent to give any court, other than this, final jurisdiction of appeals from circuit courts. In 1877 appeals from circuit courts constituted the great volume of business on the docket of this court. Since then superior courts have been created in such numbers that appeals from them are almost as numerous as those from circuit courts. In 1877 the crowded condition of the docket of this court afforded a condition of actual peril, and section 12 of our Bill of Rights, which guaranteed a speedy administration of justice, was fast becoming an unredeemed pledge. To remedy such condition, and relieve this court of a part of its appellate burden, the Legislature proposed the amendment to section 1, art. 7, by substituting "other" for "inferior" and thereby unshackling the Legislature of the

limitation on its power to create a court to finally determine appealable cases. There can be no doubt about the purpose of the Legislature in proposing, or of the people in adopting, this amendment.

In State ex rel. Hovey v. Noble (1889) 118 Ind. 350, 364, 21 N. E. 244, 249, 4 L. R. A. 101, 10 Am. St. Rep. 143, it was said: "We know judicially that our Constitution was so amended as to invest the Legislature with power to create courts superior to the circuit courts, and that this was done for the purpose of enabling litigants to have appeals disposed of by a constitutional tribunal." This opinion was written by Elliott, J., who had been one of the judges of the superior court of Marion county previous to 1881, and was a judge of this court when the amendment was adopted.

sembly may establish,' the Legislature, by an act approved February 28, 1891, created the Appellate Court."

Neither the purpose, nor scope, of the amendment of 1881 is discussed in the prevailing opinion, yet what this court judicially knew in 1889 and 1898 it still knows judicially, and surely the people, with such known purposes in view, in adopting the amendment, have the right to have such purpose given effect by the courts in construing an act passed in furtherance of such intent. Courts have no rightful power to disregard or ignore a constitutional provision, yet, in my judgment, the prevailing opinion can only stand, even as to circuit court appeals, by ignoring or disregarding the effect of the 1881 amendment; as to appeals from statutory courts, legislative power held prior to the amendment must be disregarded, if the majority opinion shall stand.

The logical effect of the prevailing opinion is to deny the constitutional existence of the Appellate Court. It would be absurd to hold that it was ever created as an intermediate court of appeals. Not a vestige of intermediate jurisdiction was given it for On the the first 10 years of its existence. contrary, it is repeatedly declared in the act of its creation that its jurisdiction is "final and exclusive." Acts 1891, p. 39, §§ 1, 10, 12, 13, 19. There is no room for construction here. There was no intention to create anything but a court of last resort, for cases

appealable to that court.

By the amendment of 1901 (Acts 1901, p. 565) the Appellate Court was given intermediate jurisdiction in appeals from money judgments of over $6,000, but this provision was repealed in 1907. Acts 1907, p. 237. The amendment of 1901, as amended in 1907, makes the Appellate Court's action final, except in cases (a negligible number) where the opinion of that court contains an erroneous declaration of law. It would be absurd to charge the Legislature of 1901 with the intent to create a court whose only constitutional (intermediate) jurisdiction would be in cases where the court erroneously declared the law in its opinions, for it must not be forgotten that by the act, as amended in 1901, the action of the appellate court is final and exclusive, in the absence of an erroneous declaration in the opinion and only where such error exists has this court any power to review its action.

laws, or to the common law. As said by Jordan, J., in Ex parte France, supra, the purpose was not in the interest of the losing litigant, "but was to give the Supreme Court a revising hand over the opinions of the Appellate Court." In reality, it is but a censorship of Appellate Court opinions-a thing

Ct.

That the transfer provision of 1901 was not intended to perform any office of the common-law writ of certiorari is manifest when we consider that such office, or function, was an entire stranger to the common law. In reality, the common-law writ of certiorari was used principally to keep inferior courts within the boundaries of their jurisdiction, and it never performed any of the regular functions of a writ of error on appeal. 4 Encyc. Pl. & Prac. 91; People v. Judge, 24 Wend. (N. Y.) 249; Milwaukee Iron Co. v. Schubel, 29, Wis. 444, 9 Am. Rep. 591.

This court under the transfer act has no power to review the record in a case appealed to the Appellate Court, unless that court has written an opinion, and unless the opinion contains some erroneous declaration of law. In an application to transfer, the question is not whether the decision of the Appellate Court is right or wrong, but whether the opinion contains an erroneous declaration. U. S. Cement Co. v. Cooper, 172 Ind. 599, 88 N. E. 69.

If the decision of the Appellate Court is right, yet the case must be transferred if there is an erroneous legal statement in the opinion. Klein v. Nugent, 162 Ind. 509, 70

N. E. 801.

On the other hand, if the decision of the Appellate Court is clearly wrong, still if no opinion was written, or, if written, it contains no erroneous declaration of law, this court has no power of review. Barnett v. Bryce Furnace Co., 157 Ind. 572, 62 N. E. 6. The Appellate Court is only required to write opinions in cases where judgments are reversed, and, of course, where there is no opinion, there can be no transfer, yet where there is an opinion, if error does not appear on the face thereof, there is nothing to censor, and the application to transfer must be denied, although the record might disclose a judgment affirmed, which was rendered on a complaint that failed to state a cause of action, and which was unsupported by any

evidence.

The narrow scope of the transfer provision proved unsatisfactory to the bar of the state. See proceedings State Bar Association, 1910, 190-207.

The practical operation of the transfer act of 1901, during its 12 years of existence, shows that it had only given this court the power to review less than 5 per cent. of the cases appealed to the Appellate Court. In the other 95 per cent. the decisions of the Appellate Court were as much a finality as the decisions of this court. Yet during the first 10 years of the existence of the transfer act, a thousand or more undisposed of cases had accumulated on the dockets of

its work. It is no wonder the bar complained of a provision which absorbed so much time of this court as to practically nullify the constitutional guaranty of a speedy administration of justice, with no result except the transfer of probably about 15 cases per year-a number not greatly exceeding that of the former decisions of this court overruled in the same space of time. To remedy such confessed evil, the Legislature of 1911 passed the act held invalid in Ex parte France, supra, for reasons that are repudiated in the prevailing opinon here. The Legislature of 1913 had the same purpose in view-getting rid of the law's delay-but this purpose is thwarted by reasons not supported by any authority, and, in my judgment, even less cogent than those assigned for the ruling in Ex parte France, supra.

Within one month after the amendment of 1881 was adopted the Legislature passed an act designed to relieve the docket of this court of its great accumulation of undisposed of cases. A Supreme Court commission was created, consisting of five judges, to be appointed by this court. Acts 1881, p. 92. Its life was originally limited to two years, but in 1883 it was continued for a like period. In 1885 the work designed for the commission was practically completed, and its life was not extended. The validity of the Supreme Court commission act was never questioned in this court. While this commission was not a court, the commissioners examined the records and wrote the opinions, subject to this court's approval, and accomplished all the practical purposes of a separate Court of Appeals. In 1889, the utter impossibility of one court reviewing all the records in appeals was again demonstrated in the accumulation of undisposed of cases. The Legislature passed a peculiar act, by which it attempted to "appoint deputy judges" to relieve the court. The act was declared invalid in State ex rel. v. Noble, supra. The succeeding Legislature created the Appellate Court.

It is said in the majority opinion that the question of the power of the Legislature to invest the Appellate Court with final jurisdiction of appeals and writs of error has never been presented to this court for decision. This is erroneous, but, assuming its correctness, it by no means follows that this court would be justified in striking down the Appellate Court act. After a practical construction of an act, such as this, has been acquiesced in for more than 22 years by all departments of our government, including this court, and by the entire bar and people of the state, when the results of overturning such construction would work such injustice, hardship, and confusion as even a constitutional amendment could not remedy, it would be the duty of this court to refrain

In Fall v. Hazelrigg, 45 Ind. 576, 585, 15 Am. Rep. 278, it is said: "It is a well-settled rule of construction that a contemporary exposition of a Constitution or a statute, practiced and acquiesced in for a period of years, fixes the construction, and the courts will not shake or control it."

In Stuart v. Laird, 1 Cranch, 299, 2 L. Ed. 115, it was contended that judges of the Supreme Court of the United States had no right to sit as circuit judges. It was said: "It is sufficient to observe that practice and acquiescence under it for a period of several years, commencing with the organization of the judicial system, affords an irresistible answer, and has indeed fixed the construction. It is a contemporary interpretation of the most forcible nature. This practical exposition is too strong and obstinate to be shaken or controlled. Of course the question is set at rest, and ought not now to be disturbed."

In Rogers v. Goodwin, 2 Mass. 475, it was said on this subject: "Although, if it were now res integra, it might be very difficult to maintain such a construction, yet at this day the argument ab inconvenienti applies with great weight. We cannot shake a principle which in practice has so long and so extensively prevailed. If the practice so originated in error, yet the error is now so common that it must have the force of law. The legal ground on which this provision is now supported is that long and continued usage furnishes a contemporaneous construction, which must prevail over the mere technical import of the words."

Evidently what is meant in the majority opinion, in declaring that the question had not before been presented to this court for decision, is that the precise question was not presented by the briefs of parties litigant. If so, the same is true here, and the majority opinion here, on such theory, must be held mere dictum, for no question decided here is presented by petitioner's brief.

The question was presented by the briefs in Newman v. Gates, 150 Ind. 59, 49 N. E. 826, and decided by this court. The question of the validity of the Appellate Court act has been actually and properly decided scores and hundreds of times by this court.

It would be a reproach to this court to assert that when it, by the decision of Ex parte Sweeney, 126 Ind. 583, 27 N. E. 127, transferred to the Appellate Court for final exclusive determination a great mass of undisposed of cases, it did not decide the constitutionality of the Appellate Court act of 1891. Surely it will not be contended that this court will permit a stranger to take from it the records in appeals, of which it has lawful jurisdiction, and thus deprive it of its sole constitutional authority to finally deter

It

lawyer appeared to advise it of its constitutional authority. In Ex parte Sweeney, supra, it was said: "The petition requires an examination of the act creating an Appellate Court. carves out of the general appellate jurisdiction of the state a part and transfers it to the court it creates. It takes from a great field designated parts. It is only necessary to ascertain and decide what classes of cases are declared to be within the jurisdiction of the newly created court. * The clerk will make the transfer of cases to the Appellate Court, as required by section 19 of the act, under the rules laid down in this opinion."

*

*

In Branson v. Studabaker (1892) 133 Ind. 149, 152, 33 N. E. 98, 99, this court, on its own motion ordered briefs filed by the parties on the question of jurisdiction. In appellee's brief it was contended that jurisdiction was in this court because the Appellate Court act was unconstitutional, and the appellant contended that jurisdiction was here because title to real estate was involved. This court decided the Appellate Court act constitutional, but held that this court had jurisdiction. In the course of the opinion it was said: "A question of jurisdiction is in the record, and must be determined. * A court must look to the law for its jurisdiction of the subject, and must, notwithstanding the agreement of the parties, decline to entertain jurisdiction if it is not conferred by the law. We must therefore ascertain and determine whether this appeal is within the jurisdiction of this tribunal, or within that of the Appellate Court." In passing on the validity of the Appellate Court act it was said: "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. The Appel

late Court is a legal tribunal in which all appeals over which it is given jurisdiction may be heard and determined."

99

In Newman v. Gates (1898) 150 Ind. 59, 49 N. E. 826, a petition was filed in this court for a writ of certiorari, to the Appellate Court, to require a certification of the record to this court, for the purpose of determining whether the Appellate Court has exceeded its jurisdiction. On behalf of respondent, it was contended by counsel, as set forth in their "points and authorities,' that "the Appellate Court was created and given exclusive jurisdiction in certain cases by the act of 1891," and, as to such cases, it is a court of "last resort," and its decision final. In its opinion denying the writ the court held: "The act creating that court provides expressly for a court of final resort, although with certain defined and limited jurisdiction. In all cases in which the

equal eminence. Practically every judge of this court for the last 20 years, including all the present members thereof, practiced regularly before the Appellate Court from 1891 to 1901. Of course all lawyers, with extended practice, lost one or more cases appealed to the Appellate Court during that period, yet none of them (except in the two cases mentioned) appear to have doubted the validity of the Appellate Court act. Any lawyer who entertained any doubt about the validity of the Appellate Court act from 1891 to 1901, would, when his client's cause was decided against him by the Appellate Court, have been guilty of gross dereliction of duty by failing to offer his services in testing the validity of the act. That there was no test (except the two cases mentioned) is conclusive proof that the lawyers of Indiana never doubted the validity of the act; and surely the opinions of the thousands of eminent lawyers who have represented clients in the Appellate Court are worthy of some consideration.

We have here, therefore, several cases where this court in written opinions have affirmed the validity of the Appellate Court act of 1891; we know that in hundreds of other cases this court, by necessary implication, reached the same conclusion; we have a practical construction of the act, by the lawyers and litigants of the state; and after a lapse of 22 years we awaken to the discovery that all the judges, lawyers, and people of the state have all this time been mistaken about the meaning of the Constitution; that the Appellate Court had no constitutional existence previous to 1901; and, if the reasoning in the prevailing opinion shall be carried to its logical conclusion, it has had no constitutional existence since.

It is difficult to conceive of the consequences of the ruling. From 1891 to 1901 the Appellate Court determined about 4,000 cases. If the act of its creation was invalid its judgments were, and are, absolutely void. Norton v. Shelby Co., 118 U. S. 425, 6 Sup. Ct. 1121, 30 L. Ed. 178; In re Norton, 64 Kan. 842, 68 Pac. 639, 91 Am. St. Rep. 255; State ex rel. v. Mount, 151 Ind. 679, 51 N. E. 417, 52 N. E. 407; State ex rel. v. Friedley, 135 Ind. 119, 34 N. E. 872, 21 L. R. A. 634. There may be such a thing as a de facto officer of a valid office, but there is no such thing as a de facto court. As said in State ex rel. v. Mount, supra, "In order that there be a judge there must be a court." Nor is that all. The law grants appeals from practically all judgments of nisi prius courts. The appeal requires a review of the record on its merits. If the Appellate Court cannot determine these cases finally, the Supreme Court must, and it must hand down an opinion in each case decided. Section 5, art. 7, Const. Indiana. All appealable cases must, under the prevailing opinion, be re

the Appellate Court is not one of last resort, litigants have a right to a review of the record and an opinion thereon, by this court. It can never be held that this court may rightfully deny a petition to transfer, except on the theory that the Appellate Court is one of last resort. Indeed the language of the act of 1901 would admit of no such construction, but were it otherwise a theory that the Legislature may limit the right of review by the mere existence of error in the opinion of an intermediate court would directly conflict with other provisions of our Constitution. Clause 3, § 22, art. 4, and section 23, art. 1, Const. Indiana. Classification is justifiable only when based on some reason inherent in the subject-matter of the legislation. To attempt to give to a class of litigants the right of review by this court, of judgments where the Appellate Court made an erroneous declaration of law, and deny it to another class (95 per cent.), where there may be no such declaration, would be entirely without reason. It is sufficient to say that the act of 1901 makes no such attempt. It excludes a review by this court of approximately 95 per cent. of the cases appealed to the Appellate Court, because, as believed by the General Assembly, and as repeatedly held by this court, the General Assembly lawfully constituted the Appellate Court as one of last resort; if not, the act of 1901 is also invalid.

There are now pending before the two courts probably 1,000 appeals. About 600 new cases arrive annually. It is evident that this court cannot get time to hear mereby the oral arguments in all appealable cases. With the Appellate Court sitting in two divisions (the equivalent of two courts) the 11 judges of the two courts have failed to dispose of the accumulating business since 1901. Every one knows that at no time in the last 40 years has one court been able to dispose of all appealable cases, and we know that 32 years ago, because of that fact, the people of Indiana amended their Constitution so that the Legislature might be left free to grant the necessary relief. Yet under this reasoning, if carried into effect, the administration of justice, in the appellate department, will be practically paralyzed.

If the act of 1913 be considered as a matter of first impression, with nothing but the wording of the Constitution as a guide, it must be held valid, because there is no constitutional limitation on the power of the General Assembly to pass the act. If it be considered in the light of judicial decisions of this court, the same result is reached, as shown by the repeated declarations of this court heretofore cited, relative to the original act creating the Appellate Court; for it must not be forgotten that the act of 1913 varies in no substantial particular from that