Ex parte France

• Decision Date: 21 June 1911
• Docket Number: No. 21,832.,21,832.
• Citation: 95 N.E. 515,176 Ind. 72
• Parties: Ex parte FRANCE, Clerk of Supreme Court.
• Court: Indiana Supreme Court

176 Ind. 72

95 N.E. 515

Ex parte FRANCE, Clerk of Supreme Court.

No. 21,832.

Supreme Court of Indiana.

June 21, 1911.

Petition by J. Fred France, Clerk of the Supreme Court and Ex Officio Clerk of the Appellate Court, for directions as to his official duty under Acts 1911, c. 117. Act adjudged invalid in part.

Henley, Matson & Gates, for petitioner. Miller, Shirley, Miller & Thompson, amici curiæ. Ewbank, Hanan & Hanan, in reply.

JORDAN, C. J.

The petitioner herein, J. Fred France, clerk of the Supreme Court and ex officio clerk of the Appellate Court, has filed and presented a petition to the Supreme Court, whereby he invokes its judgment and direction in respect to his official duty of transferring undistributed cases pending in the Appellate Court to the Supreme Court, and in transferring cases pending in the Supreme Court to the Appellate Court, as provided and required by section 2 of an act of the Legislature 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 section 10 of an act,” etc. Approved and in force on March 3, 1911. See Acts 1911, c. 117, p. 201.

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: 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 water courses. 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 of the sale thereof. Twentieth. Interlocutory orders appointing or refusing to appoint receiver, and interlocutory orders granting or dissolving, or overruling motions to dissolve temporary injunctions. Twenty-first. Interlocutory orders upon writs of habeas corpus: Provided, etc. *** All appealable cases, other than those herein mentioned shall be taken to the appellate court.”

It will be seen that by section 1 of this act the jurisdiction of the Supreme Court is limited to 21 classes of appealable cases. Under the express provision of the statute involved, all appealable cases other than those over which jurisdiction is invested in the Supreme Court, it is declared, shall be taken to the Appellate Court. By this provision of the case the entire residuum of appellate jurisdiction is swept into or 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 or mentioned in the first clause of section 1, being involved, it includes or embraces 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, of course, will include all cases for the recovery of damages on account of the wrongful death of a person, all 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 to recover 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 to finally decide for itself all questions arising in cases before it in regard to the admissibility of evidence and questions of practice and appellate procedure. Under the circumstances, the court, within the jurisdiction intrusted to it, has the power to declare or announce 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 2 of the 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 3 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 4 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 5 all laws or parts of laws in conflict with the act are repealed, and section 10 of an act 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., approved March 12, 1901, 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 in regard to 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.

[1] 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, Reporter, 118 Ind. 83, 20 N. E. 513, 3 L. R. A. 398, 10 Am. St. Rep. 107; Ex parte Sweeney, 126 Ind. 583, 27 N. E. 127; Ex parte Brown, 166 Ind. 593, 78 N. E. 553, and authorities there cited; Ex parte Fitzpatrick, 171 Ind. 557, 86 N. E. 964.

It is contended and argued with much force, by counsel opposing the validity of the act, that by the provisions of section 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 section 10 of the act of March 12, 1901 (Laws 1901, c. 247), the Legislature has attempted to make the Appellate Court co-ordinate with the Supreme Court and to withdraw from or deprive the latter court of its superior authority or power as invested in it by sections 1 and 4 of article 7 of the Constitution of this state. In the determination of the questions herein involved, it is necessary to refer to and set out some of the provisions of the Constitution. By article 3, § 1, 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.

Turning to the provisions of the Constitution which deal with the judicial department of the state government, which provisions are embraced in article 7, and it will be seen that section 1 of that article declares that: “The judicial power of the...