Ex parte Robert W. White.-Opinion of Court. risdiction must be intended to have been conferred by the Constitution, or if other jurisdiction is given, it should be original. The exception, however, may, and we think does point to the power contained in the proviso. The office of a proviso generally is either to except something from the enacting clause, or to qualify or restrain its generality, or to exclude some possible ground of misinterpretation of it, as extending to cases not intended by the Legislature to be brought within its purview. Minis v. The United States, 15 Peters' Reports, 445. As before remarked, the general character of this tribunal was intended to be appellate only. An appeal is defined to be the removal of a cause from an inferior to a superior court (3 Blackstone's Commentaries, 55); and it is said to be the essential criterion of appellate jurisdiction that it revives and corrects the proceedings in a cause already instituted, and does not create that cause. Marbury v. Madison, 1 Cranch, 137.— 1 Peters' Condensed Reports, 282. By a strict application of the term appellate jurisdiction it would seem that neither a mandamus nor any other original and remedial writ could issue from a superior court to any subordinate tribunal, unless it results as an incident to the appellate power in the revision and correction of the proceedings of a cause therein. Smith v. Jackson, 1 Paine Circuit Court Reports, 454. Hence the necessity for the proviso in this section of the Constitution, to qualify and restrain the generality of the language used in the enacting clause, and to except therefrom the powers mentioned in the proviso. By this proviso power is given to issue writs of injunction, mandamus, quo warranto, habeas corpus, and such other remedial and original writs as may be necessary to give this court a general superintendence and control of all other courts, a power which we think was not necessarily included in the grant of appellate jurisdiction. It places this court, with regard to all other courts of this State in the same position, in this Ex parte Robert W. White.-Opinion of Court. respect, which the Court of King's Bench, in England, occupies in relation to the inferior courts of that kingdom. It gives a superintending authority and control-the power to overlook and to govern, check and restrain all other courts. The position, that the exception in this section may refer to the power to issue the writs specifically enumerated as the original jurisdiction, and that the "other remedial and original writs" not named, are to be alone controlled by the clause, "as may be necessary to give this court a general superintendence and control of all other courts," cannot be maintained upon any proper rule of construction. The proviso forms but one sentence; the writs specifically named are designed to illustrate the meaning intended more clearly than could be done by general terms; the terms "other remedial and original writs," means writs ejusdem generis, of a kindred character, such as writs of procedendo, prohibition certiorari, &c.,which are to effect a like object, the exercise of a superintendence and control of all other courts. It is true that some of the writs thus specifically designated do not seem appropriate to the exercise of this power. An injunction, for instance, though often used to restrain proceedings in another court, yet is directed to and acts upon, the parties alone; it neither assumes any superiority over the court in which they are proceeding, nor denies its jurisdiction; but it is granted on the sole ground that, from certain equitable circumstances, of which the court that issues it has cognizance, it is against the conscience of the party to proceed in the cause. Eden on Injunctions, 14. So a quo warranto is a writ which lies for the government against any person or corporation claiming or usurping any office, franchise or liberty to inquire by what authority the claim is supported, in order to determine the right. Wharton's Dictionary of Jurisprudence, 859. Cases, however, may arise, in which these writs may be useful in exercising this power, but if they do not, it is a Ex parte Robert W. White.-Opinion of Court. matter of but little moment-it cannot alter the construction, or change the meaning of the instrument. It is very certain they can only be used, if at all, for the purposes and objects expressed. By the interpretation which we give to this section of the Constitution, effect is given to every part of it, and from it, we deduce the conclusion that the jurisdiction of this court is two-fold-first, appellate jurisdiction proper, by which we understand the revision of the proceedings of the subordinate courts, and the correction of errors in their judgments; and, secondly, a general superintendence and control of all other courts, and this by means of all appropriate, original and remedial writs known to the common law. No original proceeding can be instituted in this court, unless it be to exercise this power of superintendence or control over some other court. Reference has been made to the Constitution of the State of Alabama, and to the action of its Supreme Court, in the cases of Mead v. Dunn, and Murray v. Ayers, cited from Minor's Reports, 46, 323, as affording some aid in the proper interpretation of this section. On comparison of the Constitution of Alabama with that of our State, it is found that in the clauses defining the jurisdiction of the respective Supreme Courts, the only difference consists in the use of the terms "inferior jurisdictions," in the place of "all other courts," in the conclusion of the section. In the cases above mentioned, the question of jurisdiction was not raised or decided-in one of the cases, it is suggested by the court as a doubtful point. In the case of Davis v. The Tuscumbia Railroad Company, 4th Stewart & Porter, 421, 440, which was an original application by bill in equity for an injunction to stay waste, the court says: "We have no doubt that this court has authority to issue writs of injunction, when a case calling for the exercise of such authority is presented by the bill;" but does not give the reasons for Ex parte Robert W. White.-Opinion of Court. such opinion. It was probably deemed unnecessary, inasmuch as the injunction asked for was refused, because of a want of equity in the bill. In the case of the State ex relatione v. Paul, 5th Stewart & Porter, 40, the question of the authority of the Supreme Court of Alabama to exercise the original jurisdiction of granting a quo warranto in the first instance was expressly waived, and the writ denied on other grounds; but in ex parte Simonton et al., 9th Porter, 383, 389, which was an application for a writ of habeas corpus, praying that the right of the petitioners to be admitted to bail might be considered and allowed, the question of jurisdiction was brought directly before the court for its determination, and it was held that the Supreme Court "does not possess the constitutional power to award the writ which the petitioners have asked for, unless it be to give it a general superintendence and control of inferior jurisdictions. To bring a case within these qualifying terms, it should be shown either that some Court, or that some Judge of a court, invested with authority to act in the premises, has undertaken to decide upon the case of a party aggrieved, or else without any just cause therefor, has refused to entertain the same." This may now be considered the settled interpretation of this section of the Constitution by the Supreme Court of Alabama, having been recognized in the subsequent cases of John, a slave v. State, 1st Alabama Reports, 95. Ex parte Mansony, Ibid, 98. State v. Williams, Ibid, 342. Ex parte Tarlton, 2d Alabama Reports, 35. In the case of the State v. Porter, 1st Alabama Reports, 688, 708, the Supreme Court of Alabama extend the authority of that court to entertain original jurisdiction of a writ of quo warranto to cases in which no court subordinate of the Supreme Court could act. Without expressing any opinion of the propriety of the decision in the case last cited, we consider that the view taken by the Supreme Court of Alabama, in the case of Simonton, Inerarity, Adm'r, vs. Curtis and Griswold, Trustees.-Points decided. of the Constitution of that State, agrees substantially with that we have expressed in relation to the Constitution of Florida; and as the position in this case does not ask for the exercise of the superintending and controlling power of this court upon the action of any other court, the prayer of the petition must be denied, and the rule discharged with costs. IN RE JOHN INERARITY, ADMINISTRATOR OF JOHN FORBES DECEASED, V. CURTIS AND GRISWOLD, TRUSTEES, &c. The late Territorial Government was the creature of the Government of the United States-to continue in existence during the pleasure of Congress, or until the admission of the Territory into the Union as a State. The powers exercised by the Federal functionaries, after the admission of Florida into the Union were exercised by State authority, under the State Constitution, and by virtue of the express provisions of the schedule and ordinance, in order that no inconvenience might arise from a change of government. For this purpose, and pro hac vice, the Federal officers were continued, and acted as State officers. The records of the Territorial courts are records of the General Government, and the assent of Congress is necessary for their transfer to any other court. Upon the admission of a state into the Union, the concurrence of both the State and Federal Government is requisite to the transfer of records in cases of appropriate State jurisdiction. The Congress of the United States, by the act of February 22d, 1847, authorized the transfer of certain classes of records and pending causes to the District Court of the United States, thus claiming and exercising the power of ownership over such records. The exercise of this power by Congress was a rightful exercise of power; and so far as Congress has not claimed these records as belonging to the General Government, it may be regarded as a sanction of the action of State authority over the subject. |