Ex Parte Cox

• Decision Date: 18 December 1902
• Citation: 44 Fla. 537,33 So. 509
• Parties: Ex parte COX.
• Court: Florida Supreme Court

33 So. 509

44 Fla. 537

Ex parte COX.

Florida Supreme Court

December 18, 1902

In banc. Application by C. M. Cox for a writ of habeas corpus to a justice of the supreme court. From an order denying the writ, plaintiff brings error. Dismissed.

Taylor C.J., and Mabry, J., dissenting.

Syllabus by the Court

SYLLABUS

1. The constitution of this state, in organizing the judiciary thereof, has assigned to each court created thereby certain jurisdiction therein designated, and has provided that the legislature may give to certain of these courts additional jurisdiction. Where no such provision is made in the constitution, the legislature cannot confer upon one of these courts jurisdiction not given to it by the constitution. Taylor, C.J., and Mabry, J., dissenting.

2. A writ of error does not lie from the supreme court of this state to review a judgment rendered by an individual justice thereof in a habeas corpus proceeding.

COUNSEL C. M. Cox, in pro. per.

S. K Gillis, for respondent.

OPINION

MAXWELL J.

A writ of error from this court was sued out by petitioner to review a judgment in a habeas corpus proceeding rendered by a justice of this court, before whom the writ of habeas corpus was returnable. The question arises whether this court has appellate jurisdiction in such a case.

The right of appeal is not as of course, and, if it exists, it is because provision is made therefor in our organic or statute law. In re Curley, 34 Iowa, 184.

In section 5 of article 5 of our constitution. jurisdiction is conferred upon this court as follows: 'The supreme court shall have appellate jurisdiction in all cases at law and in equity originating in circuit courts, and of appeals from the circuit courts in cases arising before judges of the county courts in matters pertaining to their probate jurisdiction and in the management of the estates of infants, and in cases of conviction of felony in the criminal courts, and in all criminal cases originating in the circuit courts. The court shall have the power to issue writs of mandamus, certiorari prohibition, quo warranto, habeas corpus, and also all writs necessary or proper to a complete exercise of its jurisdiction.' Then follows a provision that each justice may issue writs of habeas corpus, under which provision the original writ herein was issued.

It is apparent that this section, except as to criminal cases, provides for appeals only from the circuit court, and gives such jurisdiction in two classes of cases: The first is that in which the jurisdiction of the circuit court is original, and it then applies to 'all cases in law and equity originating in circuit courts.' The second is that in which the jurisdiction of the circuit court is appellate, where it applies only to certain designated cases. The case at bar has not been before the circuit court, and there is therefore no express constitutional provision for writ of error therein.

The statutory provision for writs of error in habeas corpus proceedings is found in chapter 4920 of the Acts of 1901, amending section 1780 of the Revised Statutes; and we will assume, for the purposes of this case, that the language of the act is broad enough to embrace such writ to review the judgment of a justice of this court. The jurisdiction of this court will then depend upon the validity of this act.

The constitution, in section 1 of article 5, provides that 'the judicial power of the state shall be vested in a supreme court, circuit courts, criminal courts, county courts, county judges and justices of the peace.' It then proceeds to organize and prescribe the jurisdiction of each of these courts. After providing as above set forth for the jurisdiction of this court, in section 11 of the same article it gives the circuit courts original jurisdiction of certain designated cases, 'and of such other matters as the legislature may provide,' and appellate jurisdiction of certain cases, 'and of such other matters as the legislature may provide.' Subsequent sections fix the jurisdiction of each of the other courts created by this article; in some instances making it definite, and in others leaving it to be fixed by law, within certain prescribed bounds. Provision is made for the appointment of a referee in certain cases, and that 'the cause shall be subject to an appeal in the manner prescribed by law.'

In so organizing the judiciary of the state, it is evident that the framers of our constitution have undertaken to prescribe the powers of each of the courts so created; and when they felt it necessary that provision be made for further jurisdiction, in order that the courts, by the flexibility of their powers, might meet the unforeseen or growing demands engendered by new conditions, they made express provision therefor, designating therein the courts upon which such grant of power should be conferred. Where no such power is delegated to the legislature, it cannot vest in one of these courts jurisdiction of a matter withheld from it by the constitution.

This view is adopted in Texas, when it is said that: 'In framing the provisions of article 5, 'it was the object of the framers of the constitution to mark out a complete judicial system, defining generally the province of each of the courts by reference to the objects confided to the action of each, and the relation of each to the others. Such a system cannot be changed by action of the legislative department, except when the power to make the change is conferred by the constitution itself.' Ex parte Towles, 48 Tex. 413; Ex parte Ginnochio, 30 Tex.App. 584, 18 S.W. 82; Gibson v. Templeton, 62 Tex. 555.' Leach v. State, 36 Tex. Cr. R. 248, 36 S.W. 471; Titus v. Latimer, 5 Tex. 433; Ex parte Whitlow, 59 Tex. 273,--and in California. Caulfield v. Hudson, 3 Cal. 389; Parsons v. Tuolumne County Water Co., 5 Cal. 43, 63 Am. Dec. 76. See, also, Auditor v. Atchison, Topeka & Santa Fé R. R. Co., 6 Kan. 500, 7 Am. Rep. 575, and the leading cases of Marbury v. Madison, 1 Cranch, 137, 2 L.Ed. 60, followed in Florida v. Georgia, 17 How. 478, text 505-509, 15 L.Ed. 181; State ex rel. King v. Hall, 47 Neb. 579, 66 N.W. 642; Lake v. Lake, 17 Nev. 230, text 238, 30 P. 878; Cass v. Davis, 1 Colo. 43; Godbe v. City of Salt Lake, 1 Utah, 68; Territory v. Ortiz, 1 N.M. 5; Kent v. Mahaffy, 2 Ohio St. 498. Other cases holding that the legislature is not authorized to confer jurisdiction upon constitutional courts, though in those cases the language of the constitution was more restrictive than in ours, are Ex parte Jones, 2 Ark. 93; Flanagan v. Plainfield, 44 N. J. Law, 118; State v. Gannaway, 16 Lea, 124; State v. Bank of East Tennessee, 5 Sneed, 573; Vail v. Dinning, 44 Mo. 210.

A decision by this court very much in point is that of Singer Mfg. Co. v. Spratt, 20 Fla. 122, in which it is held that as the constitution had expressly conferred upon the circuit courts original jurisdiction in certain cases, not embracing the writ of prohibition, it had no jurisdiction of this matter. The court says: 'Here we have the jurisdiction of the circuit courts and of the supreme court sharply defined. The power to issue the writ of prohibition is, in clear words, given to the supreme court, as an original proceeding. The constitution, enumerating what original writs may be issued, omits to name the writ of prohibition as within the power of the circuit courts and judges, but expressly gives the power to issue this writ to the supreme court. The ancient maxim, 'Inclusio unius est exclusio alterius,' is applicable. As a writ 'necessary to the complete exercise of their jurisdiction,' the circuit courts may issue a prohibition or any other appropriate writ to protect its jurisdiction in any cause properly before it; but this is ancillary to a jurisdiction already acquired, and not an original process by which to obtain jurisdiction. Nor is it within the power of the legislature to enlarge the jurisdiction so strictly defined.' The italics are ours. The court then quotes approvingly and applies Marbury v. Madison, above cited.

The application of this doctrine to the present case is made more pointed by the fact that the appellate jurisdiction of this court is prescribed in the same section of the constitution which authorizes one of its justices to act in habeas corpus proceedings. With both subjects under consideration at the same time, no provision is made in the one making it applicable to the other. Whether the same rule would apply equally as to appeals from the exercise of judicial powers created under subsequent amendments, we need not consider.

And it is further to be observed that unlike the constitution of some states, and that first in force in this state, our present constitution does not provide that the supreme court shall have general superintendence and control of all other courts. It has merely prescribed that it shall have certain stated appellate jurisdiction, and certain stated original jurisdiction, with no provision, as in the case of circuit courts, that the legislature can enlarge this.

It only remains to comment upon and distinguish certain decisions of this court which may perhaps be regarded as indicating a different view from that there expressed.

In Ex parte Henderson, 6 Fla. 279, it was held that the legislature had power to provide for appeals from justice courts to the circuit courts, though only original jurisdiction had been expressly conferred by the constitution upon the latter courts. The court held that, as the trial upon appeal was de novo, it was an exercise of original, and not of appellate jurisdiction; the one ingredient of appellate power being that the case had had its origin in the inferior court. Furthermore, the constitution then in force provided, in section...