Ex parte France

• Decision Date: 21 June 1911
• Docket Number: 21,832
• Citation: 95 N.E. 515,176 Ind. 72
• Parties: Ex parte France, Clerk of the Supreme Court
• Court: Indiana Supreme Court

95 N.E. 515

176 Ind. 72

Ex parte France, Clerk of the Supreme Court

No. 21,832

Supreme Court of Indiana

June 21, 1911

Original petition by J. Fred France, as Clerk of the Supreme Court, for directions as to his duty under the act of 1911 (Acts 1911 p. 201).

In support of the act:

Thomas M. Honan, Attorney-General, J. E. McCullough, Edwin Corr Thomas H. Branaman, Bernard Korbly, and Willard New.

Against the act:

Louis B. Ewbank, John W. Hanan, J. Frank Hanan, and Henley, Matson & Gates.

Amici curiae--against the act:

Miller Shirley, Miller & Thompson.

For petitioner Addison C. Harris--against the act:

Addison C. Harris, pro se.

Jordan C.J. Morris and Cox, JJ., dissent Myers, J. Morris, J.

OPINION

Jordan, C. J.

The petitioner herein, J. Fred France, Clerk of the Supreme Court and ex-officio Clerk of the Appellate Court, has presented a petition to the Supreme Court, whereby he invokes its judgment in respect to his official duty of transferring to the Supreme Court undistributed cases pending in the Appellate Court, and in transferring to the Appellate Court, cases pending in the Supreme Court, as required by § 2 of an act of the legislature in force on March 3, 1911 (Acts 1911 p. 201) entitled "An act entitled an act concerning appeals to the Supreme and Appellate Courts, defining the jurisdiction of each of said courts, providing for the distribution of cases appealed and not distributed, repealing all laws in conflict * * * and expressly repealing § 10 of an act," etc.

The first section of this act provides that "all appeals in appealable cases in the following classes shall be taken directly to the Supreme Court, viz.: First. All cases in which 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. Second. All criminal prosecutions. Third. Actions to contest the election of public officers. Fourth. Cases of mandate and prohibition and actions or proceedings in quo warranto. Fifth. Cases of habeas corpus. Sixth. Actions to contest wills. Seventh. All actions in which the construction of a will is involved. Eighth. Proceedings to establish drains and proceedings to change or improve watercourses. Ninth. Condemnation proceedings for the appropriation of lands for public use. Tenth. Proceedings to establish gravel roads and proceedings to establish public highways and proceedings to vacate public highways. Eleventh. Judgments granting or denying licenses to sell intoxicating liquors. Twelfth. Prosecutions for contempt of the lower courts. Thirteenth. Applications for admission to the bar to practice law and proceedings to disbar an attorney at law. Fourteenth. All actions involving the title to real estate or the possession thereof. Fifteenth. All cases involving the granting or refusal to grant injunctions. Sixteenth. All cases for the specific performance of contracts. Seventeenth. All probate matters including all suits growing out of the settlement of decedents' estates; the settlement of the estates of infants and the settlement of the estates of persons of unsound mind, and all matters incident thereto. Eighteenth. Interlocutory orders for the payment of money or to compel the execution of any instrument of writing, or the delivery or assignment of any securities, evidences of debt, documents or things in action. Nineteenth. Interlocutory orders for the delivery of the possession of real property or the sale thereof. Twentieth. Interlocutory orders appointing or refusing to appoint receivers, and interlocutory orders granting or dissolving, or overruling motions to dissolve temporary injunctions. Twenty-first. Interlocutory orders upon writs of habeas corpus. * * * All appealable cases, other than those herein mentioned shall be taken to the Appellate Court."

It will be seen that by § 1 of this act the jurisdiction of the Supreme Court is limited to twenty-one classes of appealable cases. Under the express provision of the statute involved, it is declared that all appealable cases, other than those over which jurisdiction is invested in the Supreme Court, shall be taken to the Appellate Court. By this provision of the act the entire residuum of appellate jurisdiction is lodged in that court. It will be noted that the character of the cases over which the Appellate Court is given final jurisdiction is quite important. In the absence of any of the questions enumerated in the first clause of § 1 being involved, it includes all appealable cases for the recovery of money, without regard to any limitation upon the amount. The amount may be a million dollars or over. The jurisdiction of the Appellate Court in cases for the recovery of money will include all cases for the recovery of damages on account of the death of a person by the wrongful act of another, also injuries either to person or property at common law or under a statute; also cases for the recovery of damages for the defamation of character, false imprisonment, malpractice, and for statutory penalties. That court is also invested with jurisdiction over insanity inquests, cases involving the rights and duties of common carriers, cases for divorce, and many others of importance. Under its jurisdiction the Appellate Court is authorized finally to decide for itself all questions arising in cases before it in regard to the admissibility of evidence, and questions of practice and appellate procedure. The court, within the jurisdiction entrusted to it, has the power to declare what, in its judgment, is the governing law of the State. It is true that it is required to follow the decisions of the Supreme Court; but, in the absence of any revisory power or control over its decisions invested in that court, who is to determine whether it has followed the decisions of the Supreme Court? With two exceptions the Appellate Court is given jurisdiction in all equity cases. Under the jurisdiction granted to it, it necessarily follows that it has the power to construe statutes and interpret contracts involved in any of the cases over which it has jurisdiction.

Section two of said act provides that "immediately upon the taking effect of this act the Clerk of the Supreme and Appellate Courts shall transfer to the Supreme Court all cases then pending in the Appellate Court, not distributed, the jurisdiction of which is by this act conferred upon the Supreme Court, and docket the same in the Supreme Court, and such Clerk of the Supreme and Appellate Courts shall also transfer to the Appellate Court all cases then pending in the Supreme Court not distributed, the jurisdiction of which is by this act conferred upon the Appellate Court, and docket the same in the Appellate Court," etc.

Section three provides that "all cases now pending in the Appellate Court and not distributed, and all cases hereafter appealed or transferred to the Appellate Court shall be distributed in the order of their submission and placed upon the docket of the division to which they are distributed, irrespective of the district from which such appeals may have been taken."

Section four declares that "the jurisdiction of the Appellate Court in all cases in which jurisdiction is hereby conferred upon said court shall be final."

By section five all laws or parts of laws in conflict with the act are repealed, and section ten of an act approved March 12, 1901 (Acts 1901 p. 565), entitled "An act concerning appeals, increasing the number of judges of the Appellate Court, providing that the same shall sit in two divisions, defining their jurisdiction and the jurisdiction of the Supreme Court," etc., is expressly repealed.

Attorneys representing parties interested in undistributed cases pending on appeal in the Supreme Court, the jurisdiction of which, under provision of the act in question, is lodged in the Appellate Court, and which are required to be transferred to that court, have been permitted to appear in this proceeding, and by oral and written argument have raised the question of the constitutional validity of this statute. The Attorney-General, together with associate counsel, has appeared herein, and seeks to uphold the validity of the act in question. That under the petition of the clerk of this court the constitutional validity of this act may be raised and decided, is a proposition well settled. Ex parte Griffiths (1889), 118 Ind. 83, 20 N.E. 513; Ex parte Sweeney (1891), 126 Ind. 583, 27 N.E. 127; Ex parte Brown (1906), 166 Ind. 593, 78 N.E. 553, and authorities cited; Ex parte Fitzpatrick (1909), 171 Ind. 557, 86 N.E. 964.

It is argued with much force by counsel opposing the validity of the act that by the provision of § 4, which declares that "the jurisdiction of the Appellate Court in all cases in which jurisdiction is hereby conferred upon said court shall be final," and by the express repeal of § 10 of the act of 1901, supra, the legislature has attempted to make the Appellate Court coordinate with the Supreme Court, and to deprive the latter court of its superior authority, vested in it by article 7, §§ 1, 4, of the Constitution of this State. In the determination of the questions herein involved, it is necessary to set out some of the provisions of the Constitution. By article 3 the powers of the state government are divided into three separate departments, namely, the legislative, the executive, including the administrative, and the judicial, and no person charged with the official duties under one of these departments shall exercise any of the functions of another except as in the Constitution expressly provided.

Article 7, § 1, of the Constitution...