San Antonio & A. P. Ry. Co. v. Blair

HAWKINS, J.

House. Bill No. 39, entitled “An act to relieve the crowded condition of the dockets of the Supreme Court,” etc., hereinafter called Relief Act, was passed by the Thirty-Fifth Legislature, and approved March 15, 1917, effective immediately. Acts 1917, c. 76, p. 142.-Shortly afterward, treating said statute as valid, and without then writing upon the subject, our Supreme Court, acting as a court, this writer dissenting, undertook to put it into operation, thereby, in effect, upholding its constitutionality. San Antonio & Aransas Pass Ry. Co. v. Blair (opinion by our Chief Justice Phillips, filed June 27, 1917) 196 S. W. 502 ; Bacon v. Russell, 57 Tex. 409 ; Railway v. Shannon, 100 Tex. 389 , 100 S. W. 138 , 10 L. R. A. (N. S.) 681; Henderson v. Beaton, 52 Tex. 29 ; concurring opinion in Terrell v. Middleton, 191 S. W. 1140 ; People ex rel. Morgan v. Hayne, 83 Cal. 111 , 23 Pac. 1 , 7 L. R. A. 348, 17 Am. St. Rep. 211 ; Smith v. Odell, 1 Pin. (Wis.) 449; In re Letcher (Mo.) 190 S. W. 20 . Indeed, the first-mentioned opinion, after referring to the motion in that case and to somewhat similar motions in numerous other cases in this court, as assailing the constitutionality of said act, very plainly declared:

“The act was set in motion because of the court’s view that it was constitutional and valid; the various grounds urged against it in all these motions having been fully considered. Had we not determined it to be a valid act, we would not have proceeded under it. It was intended, therefore, that our action in inaugurating it should serve as in effect a judgment in respect to its validity, and should be so understood.”

The manner and form in which said attempt to put said act into operation was made, and in which various proceedings thereunder have been conducted by the “designated Justices of Courts of Civil Appeals” with the sanction and approval of the Supreme Court, and by that court itself, likewise constitute practical constructions of said act, most of which, it seems, are to be adhered to, controlling and directing its operation and effect. From said opinion in the Blair Case the following explanation is taken:

“It should be stated that Mr. Justice Hawkins did not agree with the majority of the court in their determination of the validity Of the act. He accordingly dissented from the court’s action in proceeding under it, announcing that he would later file an opinion expressing his views. He has not completed his opinion, but will file it when finished. Because of the court’s previous settlement of the question, he concurs in its present action in overruling this and other like motions, referring, however, to his opinion, to be filed, for a statement of his- position.”

The term of our court having ended, I come now, in the spare time of vacation days, to a fulfillment of my said promise.

The cardinal vices of said Relief Act are twofold;

First. Its utter and reckless disregard of elementary and fundamental constitutional limitations and restrictions relating to: (a) The separation of the legislative and the judicial powers of government, (b) The investiture, delegation, and exercise of legislative power, (c) The investiture, delegation, and exercise of judicial power.

Second. In depriving litigants of cherished valuable and Constitution-given rights relating to: (a) The authoritative action by the Supreme Court itself, in contradistinction to the action of any other court, tribunal, or aggregation of individuals, upon cases within the appellate jurisdiction of the Supreme Court, (b) The decision of such causes by the Supreme Court, as a court, in contradistinction to action by two members thereof acting merely as Justices, (c) The services of Chief Justices and Associate Justices of Courts of Civil Appeals.

And following in that motley train comes a whole brood of lesser evils. Before setting out the text of said Relief Act I call special attention to the following features of the situation:

(1) Said- Relief Act transfers from the lawmaking department, consisting of the House of Representatives, the Senate, and the Governor, and delegates (a) to the Supreme Court, as a court, and (b) to a majority of the Justices of that court, as Justices, and (c) contingently, to an uncertain and shifting aggregation of Justices of Courts of Civil Appeals powers which are distinctly and purely legislative, and which ■have been vested by the Constitution of Texas in the law-making department alone, to wit, the power of determining, to a great extent, what cases shall and what cases shall not be reviewed by the Supreme Court.

(2) It transfers from the Supreme Court, as a cpurt, (a) to a majority of the Justices of. that court, acting otherwise than as a court, and (b) contingently, to said aggregation of Justices of Courts of Civil Appeals, powers which are distinctly judicial, and which have been vested by the Constitution in the Supreme Court alone, to wit, the power to pass upon appeals to that court.

(3) It combines, contemporaneously, in one set of persons, and, contingently, in another set of persons, both legislative and judicial powers, as aforesaid, in contravention of the express declaration of said Constitution that each such power shall, be confided to a separate body of magistracy.

(4) It contemplates and authorizes that some three “designated Justices of Courts of Civil Appeals,” hereinafter called designated Justices, not constituting a court, or even an organized tribunal or board, and not acting within the jurisdiction of, or in the exercise of judicial power conferred by the Constitution or laws upon, the courts of which they are members, ‘and not in the exercise of powers conferred by the Constitution upon them as Justices of .those courts, and not acting under the solemnities of any oath pertaining to their duties in the premises, and not acting according to any unvarying statute or fixed rule, but acting merely as a nondescript aggregation of individuals, and as they, in the particular case, and at the time, may see fit, (a) shall pass upon all referred applications for writs of error in eases which will aggregate perhaps about 95 per cent, of all cases appealed from our nine Courts of Civil Appeals, determining finally therein whether the particular case shall or shall not be admitted into the Supreme Court for actual review upon. its merits and' final decision by that court; and (b) shall pass also, and finally, upon the merits of all appeals in which they refuse writs of error, amounting in practice to about 80 per cent, of all referred eases, all such actions of such designated Justices, whether dismissing or refusing or granting the writ of error, to be without any official record thereof, and without any provision for enforcing such action in any cause.

(5) It deprives litigants in the Supreme Court of the services and judgment of all members of that court (a) in passing upon applications for writs of error in all cases referred to such designated Justices; and (b) in passing finally upon the merits of all causes in which writs of error are refused by such designated Justices, such latter class of cases comprising an overwhelming majority of all causes within the continuing appellate jurisdiction of the Supreme Court. And, even though no application in any case be so referred, said act may, and, at the option of any two members of the Supreme Court, will, *1154 in all but three classes of cases, substitute, in lieu of the action of the Supreme Oourt, as a court, upon the application, the final action of any two members of that court, acting in term time or in vacation, as Justices only, and not as a court. . .

(6) The operation of the act, in so far as such designated Justices are concerned, is wholly contingent upon the exercise by (a) the Chief Justice, or (b) any two Justices, of the Supreme Court, of the option therein conferred upon that court and Justices thereof.

(7) It almost constantly disrupts and disturbs some three Courts of Civil Appeals, and, indirectly, throws additional cases upon the dockets of all other Courts of Civil Appeals.

(8) It compels some three Justices of as many Courts of Civil Appeals to leave their own courts, to which they were elected, and generally even their own Supreme Judicial Districts, and to forego the exercise of the hig;k judicial powers conferred by the Constitution upon those courts, and the discharge of duties for the performance of which they were sworn, and, at the state capítol, to exercise extraneous pow-ei'S and discharge different duties imposed upon them by the Legislature only, in cases not then within the jurisdiction of any Court of Civil Appeals.

(9) It deprives litigants in those bereaved courts, indefinitely, and possibly continuously for an entire tei’m or more, of the services and judgment of such designated Justices, respectively.

(10) The duties of such designated Justices, as prescribed by said Relief Act, are being performed by them under appointments or designations not made as required by the express provisions of the act.

(11) In the absence of any provision of the Constitution, or of said act, or of any other statute, therefor, a majority only of said designated Justices are acting, from time to time, and are exercising, finally, all of the powers conferred upon them by said act, in numerous causes in which some third designated Justice happens to be disqualified by reason of the fact that the appeal is from a decision of the Court of Civil Appeals of'which he is a member.

(12) In the absence of any constitutional or statutory authority therefor, all decisions and actions of such designated Justices are being reported, from week to week, to the Supreme Court, in the form of mere unsigned memoranda, and are being announced by that court, in open court, and are being recorded in its minutes, as the official “Actions of the Committee of Judges or Courts of Civil Appeals on Referred Applications.” Aside from the record, it is, unfortunately, a fact that such actions of the designated Justices are being announced from week to week, by various newspapers, as the actions of the Supreme Court.

The precedents in constitutional and statutory construction thus set will, I doubt not, long prove to be radically, though insidiously, pernicious in both theory and practice; and the actual operation of the statute, as so construed and applied, almost certainly will entail many grave and untoward consequences, extending through coming years. Especially is that to be apprehended in cases in which referred applications for writs of error have been or shall be refused, by only two, or even by three, designated Justices; and the general danger is aggravated by the lack of statutory provision for preserving, or even for making an official record or report of their action upon or in relation to such referred applications, or for enforcing the findings or actions of such designated Justices. Never before, in the history of this state, have there arisen in court such important issues so radically affecting our judicial system. The resulting situation is, in my estimation, one of surpassing gravity.

Legislators derive all their powers from the people, through the Constitution. How, then, can they disregard it without destroying the very foundation of their authority? Vattel, p. 31; Kilbourn v. Thompson, 103 U. S. 190 , 26 L. Ed. 377 .

“The difference between a free and an arbitrary government I take to be: That in the former limits are assigned to those to whom the administration is committed; but the latter depends oh the will of the departments, or some of them. Hence the utility of a written Constitution.” Nelson, J., in Kamper v. Hawkins, 1 Va. Cas. 23 .

But of what benefit are limitations and restrictions in a written Constitution, if they are not to be observed and enforced?

“Written Constitutions are the product of deliberate thought. Words are hammered and crystallized into strength, and if ever there is power in words, it is in the words of a written Constitution. Behind the words is the power of a free people operating through the medium of a constitutional convention, called together for the purpose of framing a fundamental and inviolable system of government. Of all governmental instruments it is the most solemn and powerful. Its grants are unalterable, its delegations of power unchangeable, and its commands supreme. Until the people themselves shall change or annul their Constitution, all" must obey its mandates. * * * The Legislature cannot for any purpose cross the line which separates the departments and secures the independence of the judiciary. It is not the length of the step inside the sphere of the judiciary that summons the courts to assert their constitutional right and demands of them the performance of their sworn duty, for the slightest encroachment is a wrong to be at once condemned and resisted. As Daniel Webster said, and Mr. Calhoun substantially repeats, the ‘encroachment must be resisted at the first steps.’ ” State ex rel. Hovey v. Noble, 118 Ind. 350 , 21 N. E. 244 , 4 L. R. A. 101, 10 Am. St. Rep. 143 .

“The creation of a thousand forests is in one acorn, and Egypt, Greece, Rome, Gaul, Britain. America, lie folded already in the first man. Epoch after epoch, camp, kingdom, empire, republic, democracy, are merely the application of his manifold spirit in the manifold world.” Emerson’s Essay on History.

So I see in said Relief Act the vital germ which already has broken down constitutional barriers upon legislative authority, and has worked a clear usur-pation of supreme judicial power, and materially has disturbed the constitutional operations of the Supreme Court and of Courts.of Civil Appeals, and which, if it has not already done so, soon may convert all our courts into mere legislative dependencies, instead of a co-ordinate department of -government, and, in due progression trample upon our Bill of Rights and all the liberties and privileges of the individual.

“If the Legislature may infringe this Constitution, it is no longer fixed; it is not this year what it was the last; and the liberties of the people are wholly at the mercy of the Legislature.” Roane, J., in Kamper v. Hawkins, 1 Va. Cas. 20 .

The transcendent issue which lies wrapped up in said Relief Act is this: Shall plain provisions of the Constitution of Texas be ignored? The vital spirit of that issue sits, seen or unseen, at the hearthstone of every citizen of this state. The supreme mission of the Supreme Court of Texas has been, while administering justice between litigants, ever to uphold the fundamental principles upon which our state government was founded, to keep visible the established lines of demarcation between the powers of the three co-ordinate departments and to stay the encroachments of any one upon another, to maintain the essential elements of enlightened jurisprudence as written in our state Constitution; to preserve to the *1155 keeping of the courts all the judicial power except as otherwise expressly provided by the Constitution, and fearlessly to retain and justly to exercis.e, as a court, in all the causes and matters properly within its own clear and continuing jurisdiction, not a part only, but all and every applicable portion, of that exclusive supreme judicial power which has been vested in it, as a court; and all this, not for the sake of the judiciary, or of that particular court, but because it is a function and duty of that court to do so, and because an actual separation of the three great powers of government is essential to real liberty, and because an independent judiciary constitutes the true cornerstone of all government among freemen.

For years I have earnestly advocated the adoption of such amendments of our Constitution, and such valid legislative and other measures, as, together, would enable our Supreme Court to get and stay abreast of its work; nevertheless, upon questions as to the validity of said Relief Act, that intense desire of mine must yield to the applicable and plain provisions of the Constitution, and upon questions involving constructions of said act that desire must yield to the phraseology of the act itself. Cost what it may, I will not sacrifice the Constitution — our social compact — upon the altar of but seeming temporary expediency. It was for use in just such emergencies that the Constitution was adopted. I regret that these constitutional questions arise under a statute which directly affects the full exercise of the judicial power of the court of which I am a member; but in the premises I am no more free to withhold a candid expression of my matured judgment than if those questions related solely to any other constitutional court.

“The question which faces us is not one of discretion, but of imperative duty. The duty of maintaining the separation of the departments of the government and the integrity and existence of the courts as established and organized by the Constitution is one of the most important that the judiciary is required to perform. It is the duty of the courts to uphold the Constitution as it is written, and to yield no part of their right or authority. Judges are chosen for the purpose of maintaining the limitations of the Constitution, without which free government cannot exist. As said by the Court of Appeals of New York: ‘If this provision were intended solely for the protection of the court or its judges, they might waive it; but we do not think it was so intended. It was, in our judgment, like the whole judicial system of the state, intended for the benefit of the. people, and to secure to litigants a forum in which they might have their controversies adjudged. The jurisdiction which the Constitution preserves in the courts named is inalienable, and carries with it the corresponding duty on the part of these courts to exercise it, when called upon in proper form to do so.’ Alexander v. Bennett, 60 N. Y. 204 .” State ex rel. Hovey v. Noble, 118 Ind. 850 , 21 N. E. 244 , 4 L. R. A. 101, 10 Am. St. Rep. 143 , by Chief Justice Elliott.

Consequently, but with due and respectful deference to the joint committee of distinguished lawyers who stood sponsor to the Legislature for the constitutionality of said Relief Act, and to the legislative department, and to my Associates, whose determination of the issues herein discussed is by section 2 of article 5 of our Constitution made binding, I consider it my unquestionable duty to express here, in permanent form, and once for all, my deep-rooted and settled convictions: (a) That, for various reasons, said statute is unconstitutional, and therefore void ; (b) that, even though it be held to be constitutional and valid, it well may be doubted whether, as it stands, or in connection with kindred previous and contemporary legislation, it is intelligible and workable; and (c) that, even if it is both valid and workable, the practical construction which the Supreme Court has so placed upon it, in several material particulars, is seriously erroneous. A statement and discussion of at least some of the grounds supporting those conclusions will, I trust, at least make plain my own attitude in the premises, and may also serve, in future years, as a marker, along the new and rugged way, for a wholesome return to the beaten paths and established principles so plainly blazed out and defined by our organic law, and heretofore generally recognized and followed by the Legislature and by all the courts of this state.

The multiplicity, complexity, and interdependency of the questions and legal principles which are involved, and thé fact that one who writes a dissenting opinion is at the laboring oar, and, unlike the majority of the court, is not in a position to rest his judgment upon a mere ex cathedra statement of his. views, account for, and possibly in some degree excuse, the length to which this opinion may run, and also some repetition. The situation, as I view it, certainly calls for something more than mere quotation of the Constitution.

Said Relief Act is as follows;

“An act to relieve the crowded condition of the dockets of the Supreme Court by further regulating the mode in which and the conditions on which judgments of the Courts of Civil • Appeals may be brought befoi’e the Supreme Court for revision, granting additional powers to the Chief Justice and Associate Justices of the Supreme Court and of the Courts of Civil Appeals, as incidental to the offices held by them, providing for compensation of certain Justices of the Courts of Civil Appeals while acting as herein provided, and declaring an emergency.

“Be it enacted by the Legislature of the state of Texas:

“Section 1. It is made a condition of obtaining a review upon writ of error, by the Supreme Court, of any final judgment of any Court of Civil Appeals, that good cause therefor first be shown in an application for such writ, as heretofore required, the sufficiency of such cause to be determined as herein provided.

“Sec. 2. Provided the Chief Justice of the Supreme Court or any two of the Justices thereof are empowered, as soon as this act shall become a law, by a writing to be recorded in the minutes of the Supreme Court, to designate three of the Justices of the Courts of Civil Appeals to act as hereinafter provided. The powers given to the Chief Justice, or Associate Justices, of' the Supreme Court, may be exercised from time to time as long as reason therefor may exist, and the personnel of the designated Justices of the Courts of Civil Appeals may be changed as often as may be found advisable, by relieving one, or more, and designating another, or others, in order to interfere as little as possible with the work of the Courts of Civil Appeals, such action to be in writing and recorded, as before; and not more than one Justice shall be designated to serve at any one time from any one of these courts.

“Sec. 3. It shall be the duty of the Justices of the Courts of Civil Appeals so designated, upon receiving notice thereof, to assemble together at the eapitol of the state and to take up, consider and act upon such applications for writs of error, whether then pending or after-wards filed as may be referred to them by [the] Supreme Court or any two Justices thereof, by granting, refusing or dismissing the same in accordance with the practice of the Supreme Court heretofore prevailing; and such designated Justices may make such orders and give such directions, incidental to the consideration and disposition of applications, as are sanctioned by such practice.

“Sec. 4. The granting of an application shall admit the cause into the Supreme Court to be proceeded with by that court as heretofore provided by law. The refusal or dismissal of an *1156 application shall have the effect of denying the admission of the cause into the Supreme Court, except that motions for rehearing may be made to such designated Justices in the same way as such motions to the Supreme Court have been heretofore allowed: Provided, that the refusal or dismissal of any application shall not be regarded as a precedent or authority in any other cause; and, provided, that no one of such Justices shall participate in acting upon an application in a cause decided during his incumbency by the court of which he is a member.

“Sec. 5. The Supreme Court shall still have power to act upon applications for writs of error, when deemed expedient, and the same power is hereby conferred upon the Justices of that court, action by any two of whom shall be sufficient. And in any cause in which the Judges of the Courts of Civil Appeals shall have disagreed, or which the Courts of Civil Appeals shall have held differently upon the same question of law from the holding of another Court of Civil Appeals or of the Supreme Court, or shall have declared void a statute of the state, the application for writ of error shall be passed upon by the Supreme Court.

“Sec. 6. The powers herein conferred upon the Chief Justice and Associate Justices of the Supreme Court and of the Courts of Civil Appeals are declared to be incidental to the offices held by them respectively.

“Sec. 7. Justices of the Courts of Civil Appeals shall be entitled to have their actual and necessary expenses incurred in going to, remaining at and returning from the capitol in the discharge of the additional duties hereby imposed upon them, paid out of the state treasury from warrants drawn by the comptroller, based upon itemized accounts of such expenses, verified by tibe certificate or affidavit of the claimant.

“Sec. 8. The great delays, often amounting to a denial of justice, in the disposition of business in the Supreme Court, owing to the accumulation of more work than can be done by the judges thereof, create an imperative public necessity and an emergency for the suspension of the constitutional rule requiring bills to be read on three several days in each house, and for putting this act in force from and after its passage, and it is accordingly so enacted.”

The Constitution of Texas provides:

“The powers of the government of the state of Texas shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy, to wit: Those which are legislative to one, those which are executive to another, and those which are judicial to another; and no person, or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted.” Section 1, art. 2.

“The legislative power of this state shall be vested in a Senate and a House of Representatives, which together shall be styled ‘The Legislature of the "State of Texas.’ ” Section 1, art. 8.

“No law shall be passed except by bill.” Section 30, art. 3.

Following up the above-mentioned sharp distinction in classification of governmental powers, article 5, the present judiciary article of our Constitution, as amended in 1891, in making a careful distribution of judicial power, provides:

“The judicial power of this state shall be vested in one Supreme Court, in Courts of Civil Appeals, in a. Court of Criminal Appeals, in district courts, in county courts, in commissioners’ courts, in courts of justices of the peace, and in such other courts as may be provided by law. * * * The Legislature may establish such other courts as it may deem necessary, and prescribe the jurisdiction and organization thereof, and may conform the jurisdiction of the district and other inferior courts thereto.” Section 1, art. 5.

“The Supreme Court shall consist of a Chief Justice and two Associate Justices, any two of whom shall constitute a quorum, and the concurrence of two judges shall be necessary to the decision of a case.” Section 2, art. 5.

“The Supreme Court shall have appellate jurisdiction only, except as. herein specified, which shall be coextensive with the limits of the state. Its appellate jurisdiction shall extend to questions of law arising in cases of which the Courts of Civil Appeals have appellate jurisdiction under such restrictions and regulations as the Legislature may prescribe. Until otherwise provided by law, 'the appellate jurisdiction of the Supreme Court shall extend to questions of law arising in the cases in the Courts of Civil Appeals in which the judges of any Court of Civil Appeals may disagree, or where the several Courts of Civil Appeals may hold differently on the same question of law, or where a statute of the state is held void. The Supreme Court and the Justices thereof shall have power to issue writs of habeas corpus as may be prescribed by law; and, under such regulations as may be prescribed by law, the said courts and the Justices thereof may issue the writs of mandamus, procedendo, certiorari, and such other writs as may be necessary to enforce its jurisdiction. The Legislature may confer original jurisdiction on the Supreme Court to issue writs of quo warranto and mandamus in such eases as may be specified, except as against the Govern- or of the state. The Supreme Court shall also have power, upon affidavit or otherwise as by the court may be determined, to ascertain such matters of fact as may be necessary to the proper exercise of its jurisdiction.” Section 3, art. 5.

“The Court of Criminal Appeals shall consist of three judges, any two of whom shall' constitute a quorum,- and the concurrence of two judges shall be necessary to a decision of said court.” Section 4, art. 5.

“The Court of Criminal Appeals shall have appellate jurisdiction coextensive with the limits of the state in all criminal cases of whatever grade, with such exceptions and under such regulations as may be prescribed by law. The Court of Criminal Appeals and the judges thereof shall have the power to issue the writ of habeas corpus, and, under such regulations as may be prescribed by law, issue such writs as may be necessary to enforce its own jurisdiction. The Court of Criminal Appeals shall have power, upon affidavit or otherwise, to ascertain such matters of fact as may be necessary to the exercise of its jurisdiction.” Section 5, art. 5.

“The Legislature shall, as soon as practicable after the adoption of this amendment, divide the state into not less than two nor more than three supreme judicial districts, and thereafter into such additional districts as the increase of population and business may require, and shall establish a Court of Civil Appeals in each of said districts, which shall consist of a Chief Justice and two Associate Justices, who shall have the qualifications as herein prescribed for Justices of the Supreme Court. Said Courts of Civil Appeals shall have appellate jurisdiction coextensive with the limits of their respective districts, which shall extend to all civil cases of which the district courts or county courts have original or appellate jurisdiction, under such restrictions and regulations as may be pi’escribed by law: Provided, that the decisions of said courts shall be conclusive on all questions of fact brought before them on appeal or error.

“Each of said Courts of Civil. Appeals shall hold its sessions at a place in its district to be designated by the Legislature, and at such time as may be prescribed by law. * * * Said courts shall have such other jurisdiction, original and appellate, as may be prescribed by law.” Section 6, art. 5. *1157 thereof, shall have power to issue writs of ha-beas corpus, mandamus, injunction, and certiora-ri, and all writs necessary to enforce their jurisdiction.” Section 8, art. 5.

*1156 Concerning district courts and district judges and their powers, our Constitution provides, among other things: “Said court, and the judges

*1157 And in providing for county courts and county judges, and defining their powers, it declares:

“And the county court, or judge thereof, shall 'have power to issue writs of injunction, mandamus, and all writs necessary to the enforcement of the jurisdiction of said court, and to issue writs of habeas corpus in cases where the offense charged is within the jurisdiction of the county court, or any other court or tribunal inferior to said court.” Section 16, art. 5.

That Constitution provides; also:

“No person shall hold or exercise, at the same time, more than one civil office of emolument, except that of justice of the peace, county commissioner, notary public, and postmaster, unless otherwise specially provided herein.” Section 40, art. 16.

“All courts shall be open; and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law.” Section 13, art. 1.

“No citizen of this state shall be deprived_ of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land.” Section 19, art. 1.

Said provisions in our organic law fairly contemplate and require, among other things:

(1) That, except as therein provided, the Legislature only shall exercise legislative power; it cannot be delegated.

(2) That, with the exceptions therein specifically mentioned, all the “judicial power” of this state shall be vested in courts, as courts; it cannot exist elsewhere.

(3) That, as constituting such distinct exceptions, only certain carefully enumerated powers shall vest in justices and judges of certain enumerated courts other than Courts of Civil Appeals, to be exercised in the capacities of justices or judges, in chambers or in vacation, and not as a court.

(4) That the appellate jurisdiction of the Supreme Court is, indeed, largely the subject of legislative control; but the judicial power of that court, having been conferred thereon by the Constitution itself, cannot be shifted elsewhere by even the Legislature. This vital distinction is of paramount and controlling importance: but it is one which said Relief Act seems wholly to have disregarded. And upon that rock of our Constitution said opinion of the majority of our Supreme Court in the Blair Case must suffer ultimate shipwreck. Calling our granite capitol a kite will not make it fly. “There is no magic in mere words to change the real into the unreal.” Neither the lapse of time nor practice of courts or judges can vindicate the exercise of judicial power under an unconstitutional statute. Titus v. Latimer, 5 Tex. 433 ; Rochelle v. Lane, 105 Tex. 350 , 148 S. W. 560 .

(5) That, the Constitution itself having expressly defined the appellate jurisdiction of the Supreme Court, subject only to such changes as the Legislature may see fit to make therein, in conformity with the terms and provisions of that instrument, any and all such chang’es must be made, directly, by the Legislature itself, in the exercise of its own judgment and discretion. And such power may not be exercised, even by the Legislature, except through a statute which specifies, unconditionally, what classes "of cases shall or shall not fall and lie within that jurisdiction — a statute which operates alike, at all times, upon all cases of the same class and character.

(6) That any and all such cases as shall so fall and lie within the appellate jurisdiction of the Supreme Court, whether such jurisdiction shall then exist (a) by virtue of the enumeration in the Constitution of the three classes of cases mentioned in said section 3 of article 5, or (b) by virtue of some statute specifically enlarging or diminishing that jurisdiction (and, as a corollary, that all questions involved in ascertaining or determining that jurisdiction), shall be passed upon and decided by the Supreme Court itself, as a court; the concurrence of two Justices thereof being sufficient, however, to' control the action of that court.

(7) That each court in our judicial system, as occasion therefor may arise, shall exercise all of the jurisdiction and all of the judicial power conferred, and shall perform all of the duties imposed, upon it by the Constitution and laws, and that each justice and each judge of any such court, as occasion may require, shall himself exercise all powers and perform all duties so conferred or imposed upon him as such justice or judge; and, as a corollary, that every justice or judge of any court shall be and remain, as far as reasonably may be possible, and with ra,re exceptions, in attendance thereon, during its terms, contributing his entire working time and energies to the consideration and proper disposition of cases coming before such court, and to matters, if any, properly coming before him as such justice or judge of such court.

(8) That no Justice of any Court of Civil Appeals shall, at the same time, hold any other office of emolument.

(9) That, inasmuch as Courts of Civil Appeals exist by virtue of express provisions of the Constitution and statutes, with certain definitely prescribed judicial powers and duties, the Legislature, whether acting directly or through delegated authority, has no power to invade those courts and take therefrom duly elected or appointed qualified and acting Justices thereof, and impose upon them, either as such Justices or as individuals, additional conflicting powers, and require of them, at the state capitol, which in all instances save one is far removed from the location of their respective Courts of Civil Appeals, the exercise of powers and the discharge of duties which in no wise are related to the constitutional or statutory jurisdiction or powers or duties of Courts of Civil Appeals., or of members thereof, and which materially interfere with the proper exercise of powers and the efficient discharge of duties which the Constitution and laws have imposed upon them as members of those high appellate tribunals; such legislative action constituting an unwarranted invasion of their rights and privileges as members of those courts.

(10) That the Legislature shall not deny to litigants in the Supreme Court the exercise, by that court, in their cases, of the supremff judicial power which exists in that court only, nor deliberately, and for extended periods of time, deprive litigants in any Court of Civil Appeals of the services and judgment of the Chief Justice or of an Associate Justice of that court.

The above-mentioned plain and undeniable features of the fundamental law of the land-embodying basic principles of our entire judicial system — should be kept in mind in studying said Relief Act, and by them its validity should be tested; and, if it be found or held valid in the light of those principles, its terms and provisions should be construed and applied. For the sake of perspective, certain salient features of said Relief Act are outlined, just here; consideration of details being reserved, for convenience, to subsequent portions of this discussion.

(A) Its purpose is “to relieve the crowded condition of the dockets of the Supreme Court,” and to prevent “delays, often amounting to a denial of justice, in the disposition of business in the Supreme Court, owing to the accumulation of more work than can be done by the judges thereof.” Caption; section 8.

(B) Toward that highly laudable objective, it moves, along converging lines, as follows:

(1) “By further regulating the mode in which and the conditions on which judgments of the *1158 Courts of Civil Appeals may be brought before the Supreme Court for revision.” The “mode” of the appeal to the Supreme Court, so further regulated, is the long-established statutory appeal by means of a petition or application for a writ of error (R. S. art. 1540 et seq.), not embracing presentation of cases upon “certified questions” (R. S. art. 1619). The newly added and more onerous condition precedent for obtaining a “revision” (caption), or a “review” (section 1) by the Supreme Court, of any such appealed case — or, in other words, for securing “the admission of the cause into the Supreme Court” (section 41 for consideration and review by that court upon its merits — is that such application shall first be granted (sections 1 and 4).

(2) By creating two additional instrumentalities or agencies which may pass upon all but an excepted few applications for writs of error, “dismissing” or “refusing” or “granting” same; the exercise of that power by one of those new agencies being contingent upon the authorized reference of the application. Caption; section 3. Under the terms of the Relief Act, the power of dismissing, refusing, or granting such applications, which heretofore have been restricted to the Supreme Court, as a court, now may be exercised (a) by that court, as heretofore; or (b) by any two Justices of that court, acting as such justices, and not as a court, in term time or in vacation, or (c) with certain stated exceptions, and) contingently, by any throe “designated Justices of Courts of Civil Appeals,” acting otherwise than as a court, in term time or in vacation (sections 5 and 3).

(C) The powers of said three several and distinct instrumentalities or agencies in relation to dismissing, refusing, and granting “applications” upon which they, respectively, are authorized to act (excepting the power to act upon motions for rehearing thereon, which seems to be restricted to such “designated Justices of Courts of Civil Appeals” in cases so referred to them, section 4), are, for the most part, co-ordinate, being largely incidental in nature and character, and having, in most respects, precisely similar legal and practical effects, viz.:

(1) Dismissal or refusal of an application for a writ of error has tiie primary effect of “denying the admission of the cause into the Supreme Court,” except that when such dismissal or refusal is by designated Justices of Courts of Civil Appeals a motion for a rehearing may be filed and they may act thereon, and has also the ultimate effect of finally disposing of the appeal. rThereunder what, under our Constitution, is legislative power is to be exercised by each of said three instrumentalities or agencies, in determining whether a particular cause shall or shall not be admitted to the Supreme Court “for revision” upon its merits (Const, art. 5, § 3); and judicial power is to be exercised by each of those instrumentalities or agencies (a) in passing upon the regularity of the appeal; (b) in determining jurisdiction ; (c) in passing upon the merits of the appeal, especially when the application for a writ of error is “refused,” thereby making final and irremediable disposition of the appeal, and thus, in most instances, disposing finally of the ease. Here is found, I think, a distinct blending of legislative power with judicial power — both to be exercised by the same instrumentality or agency, or persons, at the same time, in the same cause. Caption; sections 1, 2, 3, 4, and 5. But see Const, art. 2, § 1. However, “the refusal or dismissal of any application shall not be regarded as a precedent or authority in any other cause” (section 4), whereby such action is denuded of an important element of supreme judicial power and authority. And no provision is made for enforcement of any act of such designated Justices — another element of the exercise of supreme judicial power being thus denied.

(2) “The granting of an application shall admit the cause into the Supreme Court” for decision upon its merits. Caption; section 4.

(D) Designated Justices of Courts of Civil Appeals, acting together, upon referred applications, and any two of the Justices of the Supreme Court, acting together, may act contemporaneously, or at different times, in term time, or in vacation, upon different applications for writs of error, in cases of the same class, and even in the same case: and, during term time, the Supreme Court, may act, as formerly, upon any unreferred application. Referred applications may include any application not falling within one of the three enumerated classes of cases upon which the Supreme Court must act as a court. Sections 5 and 3.

(Ei) It is made the duty of the designated Justices to act upon all such referred applications, regardless of whether they were or wore not pending when said act took effect. Section 3. At that date there were pending upon the docket of the Supreme Court 352 applications for writs of error, and of them probably 95 per cent., or nearly so many, were so referable; and of the applications in those cases the designated Justices have had referred to them and have disposed of 241, dismissing 20, granting 41, and refusing 180. Of applications filed since said act became effective, 90 have been referred to and acted upon by the designated Justices. Unquestionably, therefore, the contemplated practical effect of said act was and is to transfer from the Supreme Court to such designated Justices, in all referred cases, the exercise of either all, or a material portion, of the supreme judicial power of the state which the Constitution vests in the Supreme Court as a court. In other words, under and in accordance with the terms and provisions of said Relief Act, a citizen of Texas may be deprived of his property without any hearing whatever by the Supreme Court of his timely and proper appeal (1) in a case which duly had reached the Supreme Court and was there pending upon its application docket, and 'was clearly within the appellate jurisdiction of that court in strict conformity with the Constitution and laws of this state, when said Relief Act took effect; and (2) in a case in which the application was filed after the taking effect of said Relief Act, but in strict conformity with all applicable provisions of pre-existing laws, not one of which has been expressly repealed, and all of which appear to be in full force and effect, at least except in so far as their operation is stopped, stayed, or changed, if at all, by said Relief Act.

The principal thought which runs like a thread throu"h said entirely novel and unprecedented Relief Act seems to he that the Supreme Court now has, and in future almost certainly will have, upon its application docket and its cause docket more cases than can be disposed of by that court in due or reasonable time, creating a necessity for a legislative agency of three additional men to perform nearly all of the work of that court upon its application docket; leaving that court free to> devote almost all of its time to its submission docket. An incidental purpose seems to be to confer upon any two Justices of the Supreme Coui-t certain powei's not conferred upon, but actually withheld from, them by our Constitution. Article 5, § 3; article 2. § 1. I allude to (a) the legislative power of detox-mining what cases shall, and what cases shall not, be reviewed by the Supreme Court, as a court; and to '(b) the judicial power of passing upon appeals, especially in cases wherein the application is dismissed or the writ of eri-or is' refused. Said incidental, but extremely important and unconstitutional, purpose and effect of said act seems to be regarded by my Associates as too unimportant for specific mention. In working out said main design, said Relief Act creates a new and pui-ely legislative agency which is not a court, and upon it confei-s the same legislative power which the Constitution restricts to the *1159 Legislature (article 5, § 3, and article 3, § 1), and also much of the supreme judicial power which the Constitution restricts to the Supreme Court (article 5, § 3). It confers, also, like legislative power upon the Supreme Court, as a court, and upon any two Justices thereof, as Justices: and upon the latter it confers also judicial powers which have been intentionally denied by the Constitution. Article 5, § 3.

(P) An unusual and very remarkable feature of said Relief Act is that the assistance which the three additional men are to render the Supreme Court in clearing its dockets is to be rendered, not in examining certain cases and reporting conclusions to the Supreme Court, for ratification and adoption, or modification, or rejection, by that court, but in doing finally, in probably í)5 per cent, of all cases appealed from all nine Courts of Civil Appeals, a very large share, and in doing, finally and irremediably, in probably 70 per cent, of all cases appealed from said Courts of Civil Appeals, absolutely all, of the work which heretofore has been done in such cases by the Supreme Court, although all of that work still remains within the exclusive final appellate jurisdiction of that court by virtue of pre-existing and continuing laws. In short, instead of assisting in doing the constitutional and statutory work of the Supreme Court, subject to its approval and adoption, such additional men are to do, absolutely, about three-fourths of the work which, for years, has been done by that court — exactly the same character of work upon which, for many years, that court has expended faithfully just about three-fourths of its entire working time and energies. One practical effect of the act, therefore, is to create by statute what is, in most respects, Supreme Court No. 2, to work in almost full co-ordination with our constitutional Supreme Court, exercising what amounts, to a great extent, and in most respects, to concurrent jurisdiction and coequal judicial powers, although our Constitution declares that there shall -be “one Supreme Court,” and therein lodges exclusively the supreme judicial power. Article 5, § 1.

(G) Neither said Relief Act nor any other statute makes any provison whatever for enforcing judgments, orders, or actions of the designated Justices in any cause.

Among the material questions which said Relief Act presents are these:

(1) May the Legislature delegate its constitutional authority to determine what cases shall or shall not be reviewed, upon their merits, by the Supremo Court? Article 3, § 1.

(2) May the Legislature prevent, abridge, shift, or transfer elsewhere, in causes within the appellate jurisdiction of the Supreme Court pursuant to pre-existing and still operative statutes, the exercise of all, or even part, of the supreme judicial power which our Constitution itself has vested in that court alone? Article 5, § 3.

(3) If the second question be answered affirmatively, may that authority of the Legislature be delegated to, and be exercised by, either the Supremo Court or a majority of its members?

(4) If the second question be answered affirmatively, may the exercise of that supreme judicial power be transferred by the Legislature to an aggregation of members of other constitutional courts?

(5) If the fourth question be answered affirmatively, may such transfer be made contingent upon the will and action of either the Supreme Court or a majority of its members?

Bach of these five questions should, I think, be answered negatively. From the provisions of our state Constitution it is evident that it was the intention of the framers of that instrument that legislative power shall be restricted to the Senate, the House of Representatives, and the Governor (article 3, § 1), and that the judicial power shall be restricted thus: (a) To certain courts therein enumerated. Article 5, § 1. (b) In special instances, and in only carefully stated extent, to certain therein enumerated justices or judges, not including Justices of Courts of Civil Appeals. Article 5, § 3. (c) To other courts to be created and established by the Legislature. Article 5, § 1.

Thereby is excluded the idea of conferring legislative power upon the Supreme Court, or upon Justices thereof, or upon Justices of Courts of Civil Appeals, thereby is excluded the idea of conferring, by statute, additional judicial power upon Justices of the Supreme Court, as such Justices; and thereby is excluded, also, the whole idea of conferring, by statute, upon an aggregation of Justices of Courts of Civil Appeals, any judicial power whatsoever, to say nothing of that supreme judicial power which, in relation to civil actions, the Constitution has vested in the Supreme Court as a court, and in that court alone. Article 5, § 3. Herein the expression “supreme judicial power” is used, throughout, as relating to civil actions only. Supreme judicial power in criminal cases is, of course, vested in our Court of Criminal Appeals. Article 5, § 5.

In order definitely to eliminate one question which is not material to the inquiry bqfore us, it may be conceded, for the sake of the argument, that the Legislature has authority to create a new appellate court, intermediate between Courts of Civil Appeals and the Supreme Court. To the constitutional declaration that the judicial power of this state shall be vested in certain enumerated courts are added the words, “and in such other courts as may be provided by law.” section 1, art. 5. Again, the same section provides for the establishment of other courts by declaring “the Legislature may establish such other courts as it may deem necessary, and prescribe the jurisdiction and organization thereof”; but to that it adds, “and may conform the jurisdiction of the district and other inferior courts thereto.” The last-quoted clause, if taken by itself, may be regarded as a restriction, carrying the implication that the Legislature may not conform the jurisdiction of the Supreme Court, or of Courts of Civil Appeals, to the jurisdiction of such “other courts”; the enumerated appellate courts not being “inferior” courts. But, be that as it may, and without ever reaching the question of the power of the Legislature to authorize the transfer, from the Supreme Court to some other court, tribunal, or aggregation of individuals, of cases already within or subsequently coming within the appellate jurisdiction of the Supreme Court pursuant to statute, it may be conceded, though I do not now admit, that the Legislature validly may create a court of review intermediate between Courts of Civil Appeals and the Supreme Court, and provide that appeals shall lie from Courts of Civil Appeals to such new court, and thence to the Supreme Court.

Whether our Constitution permits that may be a pertinent question in this connection, but its determination is not essential, although it might be helpful, in reaching a correct conclusion as to the validity of said Relief Act; because, even if it be conceded that such power does exist in the Legislature, it is clear that the Legislature, in’ the enactment of said Relief Act has not attempted to exercise that authority. Such designated Justices of Courts of Civil Appeals do not constitute any court. Furthermore, I do not question, but freely concede, and do not doubt, that our Legislature has ample power and authority to create a new tribunal or agency, and to charge it with the duty of “aiding” the Supreme Court in its labors upon either its application docket, or its submission docket, or both, with the proviso, however, that the work of such tribunal or agency shall not have the quality of finality, but shall be reported to the Supreme Court for modification, rejection, or adoption by that court, as a court, in the exercise of its final appellate jurisdiction as conferred upon it by the Constitution or by *1160 the Legislature pursuant to constitutional provisions, and in the ultimate and exclusive exercise therein of the supreme judicial power which the Constitution has vested in it, as a court.

That the Legislature may create such an assisting tribunal, instrumentality, or agency has -been generally recognized, and held by decisions of courts of last resort in other states, several of which are cited herein, and has been expressly held by the Supreme Court of this state in sustaining the validity of our old Commission of Appeals, after the Act of July 9 (9 Gam. Laws, 62), which created it, had been amended by Act Feb. 9, 1881 (9 Gam. Laws, 96), whei’e-in, in lieu of the pre-existing provision that no case should be referred by the Court of Appeals or by the Supreme Court to said Commission, except by written consent of parties litigant, it was provided that either of those appellate courts, without consent of the parties, might refer cases to such Commission for examination and report; the court from which it was so referred having reserved authority to reject, modify, or adopt the report of the Commission in the particular case, and being thereby placed under the duty of exercising that authority in each case. Stone v. Brown, 54 Tex. 830 . That much our Constitution of 1876 required, and as much is required by said judiciary article as it now stands. However, said distinguishing feature of said amendatory act of 1881 (Laws 1881, c. 7) is conspicuously and fatally absent from said Relief Act of 1917. The powers which the latter seeks to confer upon designated Justices of Courts of Civil Appeals are not only not simply in aid of the Supreme Court, but are in direct contravention and usurpation of much of its continuing final appellate jurisdiction and of much of its supreme judicial power. Obviously that act was not adopted in an effort to exercise said admitted power.

To reach sound conclusions as to the validity of said Relief Act, and especially as to so much thereof as attempts to confer judicial power upon Justices of the Supreme Court, and upon Justices of Courts of Civil Appeals, as Justices only, it is essentially necessary to get and keep clear conceptions of what our state Constitution means by “courts,” “justices,” “judges,” and “judicial power,” and of the elementary and radical distinction which, in apportioning “judicial power,” that instrument constantly draws between courts, upon one hand, and justices or judges, upon the other hand. The meaning of the word “court” depends upon the context. Railway v. Cox, 104 Tex. 556 , 140 S. W. 1078 ; Rochelle v. Lane, 105 Tex. 350 . 148 S. W. 560 ; Colo. & S. Ry. Co. v. Hamm, 47 Tex. Civ. App. 196 , 103 S. W. 1125 . and oases cited; Wilkerson v. Ward (Civ. App.) 135 S. W. 692 ; Sartin v. Snell. 87 Kan. 485 , 125 Pac. 47 , Ann. Cas. 1913E, 384. The signification of “courts” and of “justices” and “judges,” as those words are used in said judiciary article, are as below indicated. Courts and judges, and their respective functions and powers, are defined and discussed by an able Texas author as follows:

“A court is an agent of sovereignty, created by it or under its authority, consisting of one or more officers, for the purposes of hearing and determining issues of law and fact regarding legal rights. and alleged violations thereof, and applying the sanctions of the law, exercising its powers in due course of law, at times and places previously determined by lawful authority. A court * * * is the tribunal created by sovereignty as an agent to administer justice judicially, at designated times and places. As an agency of sovereignty it exercise? delegated powers and administers the will of sovereignty as expressed and embodied in the law. * » * The judicial function of government involves the exorcise of three powers: (1) The power to investigate and decide the facts and apply the law to the facts ascertained. (2) The power to determine and announce the result of the investigation and application. (3) The power to enforce, or, more accurately, to supervise, the enforcement of the result as announced. The courts of a government are the tribunals through which it exercises this judicial function. *_ * * A court, considered abstractly, exists only in legal contemplation. * * * All of its functions must be discharged through natural persons, and the law frequently speaks of these persons in their official capacity as constituting the court. These officers comprise a judge or judges, a jury, a clerk, and an executive officer known as marshal, sheriff, constable, etc., and attorneys at law. It is manifest that an agency as complicated and important as a court cannot be operated without some responsible head, who is authorized to give general direction to its operations and supervise the action of all its subordinate and correlated parts. The officer occupying this position is the judge. One such officer is essential to the practical working of the court. Frequently there is a larger number of thorn, with some one designated to act as the presiding officer, or chief, among them. The judge is the head of the court, presides at its sessions, and exercises general control over all its actions. He decides all questions of law arising in the course of the trial, determines such facts as arise incidentally, hears and decides all motions during the trial, and determines what judgment shall be rendered. He supervises and directs the clerical officers in keeping the records and issuing process, and the executive officers in the discharge of their duties.” Townes’ Ele. Law (2d Ed.) pp. 447, 448. See, also, 11 Cyc. 654, and eases cited.

“A judge is a public officer, who, by virtue of his office, is clothed with judicial authorities.” Todd v. U. S., 158 U. S. 278 , 15 Sup. Ct. 889, 39 L. Ed. 982 .

“A judge is an officer of the state, charged with the duty of seeing that the law is faithfully administered.” Cox v. State, 8 Tex. App. 254, 34 Am. Rep. 746 .

See, also, 23 Cyc. 504, and cases cited.

“A court must act as an organized body of judges.” Cooley’s Const. Lim. (5th Ed.) 115.

The Constitution of Michigan (section 1, art. 6) provided:

“The judicial power is vested in one Supreme Court, in circuit courts, in probate courts, and in justices of the peace.”

In construing that provision it was said:

“By ‘courts,’ as the word is used in the Constitution, we understand permanent organizations for the administration of justice, and not those special tribunals provided for by law, that are occasionally called into existence by particular exigencies, and that cease to exist with such exigencies.” Streeter v. Paton, 7 Mich. 348 .

See, also, Shurbun v. Hooper, 40 Mich. 503 , and Bissell v. Heath, 98 Mich. 477 , 57 N. W. 585 .

Evidently, in contemplation of said judiciary article of our state Constitution, “a court is not a judge, nor a judge a court.” Todd v. U. S., 150 U. S. 278 , 15 Sup. Ct. 889, 39 L. Ed. 982 .

The phrase “judicial power,” as used in our state Constitution, has a well-considered, and what heretofore has been understood to be a firmly settled meaning. That phrase has been defined and discussed as follows:

“By the judicial power of courts is generally understood the power to hear and determine controversies between adverse parties and questions in litigation.” State v. Le Clair, 86 Me. 522 , 30 Atl. 7 , 9; Armstrong v. Murphy, 65 App. Div. 126 , 72 N. Y. Supp. 475 . See, also, Daniels v. People, 6 Mich. 388 ; Underwood v. McDuffee, 15 Mich. 361 , 93 Am. Dec. 194 ; Risser v. Hoyt, 53 Mich. 185 , 18 N. W. 61 ].

“It is one of the striking and peculiar fea» *1161 tures of judicial power that it is displayed in the decision of controversies between contending parties, the settlement of their rights, and the redress of their wrongs. Inhabitants of Durham v. Inhabitants of Lewiston, 4 Me. (Greenl.) 140, 143.”

“It is the province of judicial power to decide private disputes between or concerning individuals. Sanders v. Cabaniss, 43 Ala. 173, 181 .”

“Judicial power is power belonging to or emanating from a judge as such. Webster’s definition of the word ‘judicial’ is ‘pei’tinent to courts of justice, as judicial power.’ State v. Noble, 118 Ind. 350 , 21 N. E. 244, 248 , 4 L. R. A. 101, 10 Am. St. Rep. 143 .”

“Judicial power is whatever emanates from a judge ns such, or proceeds from courts of justice. Merchants’ Nat. Bank v. Jaffray, 36 Neb. 218 , 54 N. W. 258, 259 , 19 L. R. A. 316.”

“ ‘Judicial power’ is well defined in the Century Dictionary: ‘(a) The authority to determine the rights of persons or property by arbitrating between adversaries in specific controversies at the instance of a party thereto. * * * (c) A power conferred upon a public officer, involving the exercise of judgment and discretion in the determination of questions of right in specific cases affecting the interest of-* persons or property, as distinguished from ministerial power or authority to carry out the mandates of judicial power or of the law.’ Walker v. Maxwell, 68 App. Div. 196 , 74 N. Y. Supp. 94, 96 .”

The foregoing definitions are from 4 Words and Phrases, 3860, 3861.

“Judicial power can mean nothing more nor less than the power which administers justice to the people, according to the prescribed forms of law.” State v. Dry, 4 Mo. 120 .

The five next following definitions of “judicial power” are from 23 Cyc. 1620, 1621:

“The authority vested in some court, officer, or person to hear and determine when the rights of persons or property or the propriety of doing an act is the subject-matter of adjudication.” Merlette v. State, 300 Ala. 42 , 14 South. 562 ; Grider v. Tally, 77 Ala. 422 , 54 Am. Rep. 65 .

“The authority or power vested in the judges or in the courts”—citing Bouv. L. Dict.; State v. Noble, 118 Ind. 350 , 21 N. E. 244 , 4 L. R. A. 101, 10 Am. St. Rep. 143 ; Home Ins. Co. v. Flint, 13 Minn. 244 ( Gil. 228 ); Gilbert v. Commissioners, 11 Utah, 378 , 40 Pac. 264 ; Improvement Co. v. New Whatcom, 20 Wash. 53 , 54 Pac. 774 : State v. Hyde, 121 Ind. 20 , 22 N. E. 644 ; People v. Salsbury, 134 Mich. 537 , 96 N. W. 936 .

“The power exercised by courts in hearing and determining cases before them or some matter incidental thereto and of which they have jurisdiction” — citing Musser v. Adair, 55 Ohio St. 466 , 45 N. E. 903 .

“The-power to interpret the Constitution and the laws and make decrees determining controversies” — citing State v. Hyde and People v. Salsbury, supra.

“The power which adjudicates upon and protects the rights and interests of individual citizens, and to that end construes and applies the laws”—citing Cooley’s Const. Lim.; People v. Simon, 176 Ill. 165 , 52 N. E. 910 , 44 L. R. A. 801, 68 Am. St. Rep. 175 ; People v. Chase, 165 Ill. 527 , 46 N. E. 454 , 36 L. R. A. 105; Landowners v. People, 113 Ill. 296 .

“The functions assigned to the judge under Act Eeb. 18, 1836 (P. L. p. 40), to take evidence of the refusal of the Bank of the United States to pay in gold or silver its promissory notes, are judicial. In re Kuhn, 2 Ashm. (Pa.) 170.

“We regard it as an indisputable proposition that where the inquiry to be made involves questions of law as well as fact, where it affects a legal right, and where the decision may result in terminating or destroying that right, the powers to be exercised and the duties to be discharged are essentially judicial.” Commonwealth v. Jones, 73 Ky. (10 Bush) 749 .

“Tlie duties performed by the officer, or the jurisdiction appertaining to the office, may be looked to to determine, in a case where it is not made clear by the Constitution or the statute, the inquiry as to whether a particular office is a judicial office or not.” Waldo v. Wallace, 12 Ind. 574 .

With reference to the powers of a “master” it was said:

“He is but the ministerial officer of the court, to perform such duties as may be required of him by the chancellor in the performance of his judicial functions. His powers ai’e delegated to him by the court, and the court can confer on him no judicial powers. Those powers ai’e vested in the judiciary, and cannot be delegated to any but persons belonging to that department -of government. All the acts of the master become binding only by being approved and adopted by the court. Hence the court alone can find, adjudge, and decree, so as to bind the parties and the subject-matter.” Hards v. Burton, 79 Ill. 509 .

The water commissioners’ statute of Wisconsin was attacked upon the ground that it created a tribunal and conferred “judicial powers upon it in contravention of the Constitution, which vests the whole judicial power of the state in courts therein specified.” In view of the fact that the action of the commissioners was not made final, the court upheld its validity, saying:

“The first objection to the validity of the statute rests upoti the assumption that the commissioners constitute an independent tribunal. This is incorrect. They are mere referees, and as such are only aids of the court, through whom and by whose investigations it possesses' itself of the facts of the case, to the end that it may award the proper judgment. No valid reason occurs to us for holding the statute void,, which would not he equally applicable to any law authorizing a cause to be referred to a referee to hear, try, and determine the same, unless such reason is found in the provision which; assumes to make the report of the commissioners binding upon the partSbs before the court, acts upon it. It may be doubtful whether that is a valid provision. But, if it is not, wer think it may be rejected without impairing the valid portions of the statute. There is no reason to believe that the statute would not have been enacted just as readily without that provision as with it. This is the test. State v. Dousman, 28 Wis. 541 , and cases cited. Eliminate that provision, and we have a statute providing for a simple reference of a cause to referees to hear, try, and determine the same, with directions to report the evidence and their conclusions upon it to the court for its information, to enable it to give the proper judgment. Of the validity of such statutes there can be no doubt.” Janesville Mfg. Co. v. Ford, 55 Wis. 200 , 12 N. W. 378 . .

In discussing a statute authorizing a vice-chancellor, when disqualified in a case, to designate four members of the bar, one of whom should be selected by lot to try the case, the-decree to be signed and entered by the vice-chancellor. it was said:

“Is there any valid objection, then, on the-ground that the decree is, in substance, the act of a person not clothed with judicial power under the Constitution? It has not either the force or effect of a judicial act, until signed by the chancellor; and the statute cannot, therefore, be said to create a new judicial officer-unknown to the Constitution. His power ceases when ho makes and renders his decision, and his act is not more than ministerial until it is rendered judicial by the adoption of th.e chancellor in the mode, prescribed by the statute. In principle and in leg’al effect his decision is no-more a judicial act than that of a master in chancery upon a matter referred to him..under- *1162 the ordinary practice oí courts of chancery. It derives all its legal force and character from the adoption of the chancellor, which, though formal, is yet essential as rendering it the act of the duly constituted judicial tribunal.” Grinstead v. Buckley, 32 Miss. 148 .

“The principal objection to these proceedings is claimed to be found in the clauses of the Constitution which vest all the judicial power of the state in courts, and • which provide how. those courts shall be constituted, and, as is argued, leave no room for judicial action elsewhere. The judicial power, even when used in its widest and least accurate sense, involves the power to 'hear and determine’ the matters to be disposed of; and this can only be done by some order or judgment which needs no additional sanction to entitle it to be enforced. No action which is merely preparatory to an order or judgment to be rendered hy some different body can be properly termed judicial. A master, in chancery often has occasion to consider questions of law and of fact, bnt no one ever supposed him to possess judicial power. A jury in a court of record determines all the facts in the case, but the judicial power is in the court, which enforces the verdict by judgment. This view is very clearly explained by Kent. O. .1., in Tillotson v. Ghoetham, 2 Johns. [N. Y.] 03, where it was held that the sheriff himself, when presiding over a jury of inquest, acted ministerially, because he had no power to give judgment. See, also, Story on Const § 1640 et seq.; Daniels v. People, 6 Mich. 381 ; Chandler v. Nash, 5 Mich. 409 . It is the inherent authority, not only to decide, but to make binding orders or judgments, which constitute judicial power; and the instrumentalities used to inform the tribunal, whether left to its own choice or fixed by law, are merely auxiliary to that power, and operato on persons or things only through its action, and by virtue of it.” Underwood v. McDuffee, 15 Mich. 368 , 93 Am. Dec. 194 . See, also, Townsend v. Radcliffe, 63 Ill. 10 .

“A commissioner is not a judge; he does not possess final power in any one instance.” Ex parte Gray, 1 Bailey, Eq. (S. C.) 77.

As to commissiofrers it is said:

“Indeed, they are not, and under the Constitution they cannot be, clothed with judicial power to, .hear and finally determine any matter whatsoever.” U. S. v. Berry (D. C.) 4 Fed. 779 .

“It is competent to send a case to referees or to a master for investigation of accounts.” Underwood v. McDuffee, 15 Mich. 361 , 93 Am. Dec. 194 ; Hards v. Burton, 79 Ill. 504 . But it is not competent to give the referee powers of final decision. Johnson v. Wallace, 7 Ohio, 62, pt. 2; King v. Hopkins, 57 N. H. 334; St. Paul, etc., R. R. Co. v. Gardner, 19 Minn. 132 ( Gil. 99 ), 18 Am. Rep. 334 .” Cooley’s Const. Dim. (5th Ed.) 506, note 1.

“The referee exerts no power proprio vigore. Without* the court he could have no existence; without the court he could not act after his creation; and without confirmation and adoption by the court his acts have no force or validity whatever. Nothing can originate before a referee¡ and nothing can terminate with or by the decision of a referee. The court acquires the jurisdiction, and the court renders the judgment upon the controversy; therefore the whole exercise of the judicial power is by the court, the referee acting only in an intermediate capacity as an auxiliary to the court in the ascertainment of certain facts and law necessary to its enlightenment in giving the proper decree or judgment.” Carson v. Smith, 5 Minn. 88 ( Gil. 58 ), 77 Am. Dec. 539 .

“Legislation providing for the trial of causes by auditors and referees, and making their findings evidence, without concluding- the parties thereby, is within the power of the Legislature and valid. In such cases the subordinate officers act under the direction of the courts, who may review and reverse the findings of such officers; but legislation making, the findings of such officers conclusive is an invasion of the province of the judiciary and unconstitutional.”

“Judicial power,” as used in Constitutions, has been discussed as follows:

“The judicial power mentioned in the Constitution, and vested in the courts, means the power conferred upon courts ordained and established by and under the Constitution, in the strict and appropriate sense of that term— courts that compose one of the three great departments of the government prescribed by the fundamental law, the same as the other two, the legislative and the executive.” 'Charge to Grand Jury under Fugitive Slave Law, Fed. Cas. No. IS,261.

“The judicial power extends to all cases in law and equity arising under the Constitution and laws and treaties of the United States.” Story on Constitution (5th Ed.) § 1649.

“Article. 5 of our Constitution provides for the organization of the judicial department of the government. It prescribes wiiat courts shall be established and defines their jurisdiction, names the officers of courts, and prescribes their powers, and in every instance save one the province of the courts so provided for is to hear and determine causes between parties affecting the rights of persons as to their life, liberty, and property. The exception is the commissioners’ courts, which are not properly a part of the judicial department. But the whole scope of the article shows clearly what is meant by the judicial department of the government.” M., K. & T. Ry. Co. of Tex. v. Shannon, 100 Tex. 389 , 100 S. W. 141 , 10 L. R. A. (N. S.) 681.

Under a statute which authorized district courts to remove disabilities of minority, our Supreme Court, through Judge Gaines, said:

“Can an order which under the statute removes the disabilities of a minor be deemed in strict language the judgment of a court? We think not. It fixes no right; it settles no dispute. It acts merely upon the status of the applicant, enlarges his capacities as a free agent, and as to all matters not political places him upon the plane of persons who have attained their majority. If the proceeding should be deemed judicial, we should be compelled to hold the statute in conflict with the Constitution, for the reason that it attempts to confer upon the district courts a jurisdiction not embraced in their p'owers as defined by the Constitution. * * * We think the power given by the statute must he regarded as an authority conferred upon the district judge as a commissioner, to be exercised while holding the sessions of his court, and not upon the court itself. He could hardly be compelled to exercise the function; it could hardly be deemed an Official duty.” Brown v. Wheelock, 75 Tex. 385 , 12 S. W. 112 .

“Our Constitution, in strong terms., declares that judicial powers shall be vested in courts, and not in ministerial officers. Its framers were careful to clearly mark out the different departments of government, and to firmly prohibit the lodging of judicial powers elsewhere than in judicial tribunals. Our decisions have given full effect to our constitutional provisions, and have uniformly declared that only judicial officers can exercise judicial functions, Little v. State, 90 Ind. 338 [ 46 Am. Rep. 224 ]; Wright v. Defrees, 8 Ind. 298 ; Waldo v. Wallace, 12 Ind. 569 ; Columbus, etc., Ry. Co. v. Board, etc., 65 Ind. 427 .” Gregory v. State, 94 Ind. 384 , 48 Am. Rep. 162 .

“All judicial power, by the Constitutions of the states and nation, is vested in the courts ; ■but the judicial power therein conferred upon and limited to the courts is that judicial power which can be exercised only by the courts. In other words, the courts have exclusive power to hear and determine those matters which *1163 affect the life or liberty or property of a citizen. All other rights, while they may be in a sense ‘judicial,’ are not so far within the jurisdiction of the courts that their exercise by another department is yoid. Territory v. Cox, 6 Dak. 501 ; Cameron v. Parker, 2 Okl. 277 , 38 Pac. 14 .”

“ ‘Judicial power,’ in Const, art. 7, § 2, providing that the judicial power in this state, ‘as to matters of law and equity,’ shall be vested in a Supreme Court, in circuit courts, courts of probate, and justices of the peace, is construed to vest such power as the courts under English and American systems of jurisprudence have always exercised in legal and equitable actions; that is, in actions at law the power of determining questions of law and not of fact, and in suits in equity the power of determining questions of both law and fact. Callanan v. Judd, 23 Wis. 343, 349 . ‘Judicial powers,’ in Const. 1879, art. 3, § 1, providing that the judicial powers of this state shall be vested in a superior court and in such inferior courts as the Legislature shall from time to time ordain and establish, embraces all cases criminal and civil, at common law and in equity. Gilbert v. Thomas, 3 Ga. 575, 579 .”

“The judicial power, which by the third article of the Constitution is vested in the Supreme Court and such inferior courts, etc., and which shall extend to all ‘cases in law and equity arising under the Constitution or laws of the United States,’ is a conclusive power. It embraces the whole judicial power as to such matters. United States v. Smith, 4 N. J. Law (1 Southard) 33, 38.”

“Judicial power, within the meaning of the Constitution, may be defined to be that power by which judicial tribunals construe the Constitution, the laws enacted by Congress, and the treaties made with foreign powers or with Indian tribes, and determines the rights of parties in conformity with such construction. Gilbert v. Priest, 65 Barb. (N. Y.) 444, 448.”

The four next preceding quotations are from 4 Words and Phrases, pp. 3860, 3861.

In Hall v. Marks, 34 Ill. 358 , the Supreme Court of Illinois reviewed the constitutional provisions vesting the powers of government in three separate and distinct bodies of magistracy, and held that the rendition of a judgment is a judicial act, and that a statute authorizing a clerk to render a judgment by default in vacation was unconstitutional. With reference to the judicial power the court said :

“The power to adjudge, determine and render a judgment is beyond all question a judicial act, and under this provision can only be done by judicial authority. * * * The Constitution has conferred this power, as we have seen, upon the judicial department, and has only authorized the officers composing that department to exercise the power. That instrument has designated the judges and magistrates of the various courts it has created or authorized to be formed, as the officers authorized to exercise the judicial power of the state.”

In relation to the writ of habeas corpus it was said:

“It is worthy of serious consideration whether, in those states where the whole judicial power is by the Constitution vested in certain specified courts, it is competent by law to give to judicial officers not holding such courts authority to review, even indirectly, the decisions of the courts, and to discharge persons committed under their judgments. Such officers could exercise only a special statutory authority. Yet its exercise in such cases is not only judicial, but it is in the nature of appellate judicial power. The jurisdiction of the Supreme Court of the United States to issue the writ in cases of confinement under the order of the District Courts was sustained in Ex parte Boll-man and Swartwout, 4 Craneh, 75 [ 2 L. Ed. 554 ], and Matter of Metzger, 5 How. 176 [ 12 L. Ed. 104 ], on the ground that it was appellate. See, also, Ex parte Kearney, 7 Wheat. 38 [ 5 L. Ed. 391 ]; Ex parte Watkins, 7 Pet. 568 [ 8 L. Ed. 786 ]; Ex parte Milburn, 9 Pet. 704 [ 9 L. Ed. 280 ]; Matter of Kaine, 14 How. 103 [ 14 L. Ed. 345 ]; Matter of Eaton, 27 Mich. 1 ; Matter of Buddington, 29 Mich. 472 .” Cooley’s Const. Lim. (5th Ed.) 425, note 3.

Further, as to what acts are judicial acts, see Henderson v. Beaton, 52 Tex. 29 ; Rochelle v. Lane, 105 Tex. 350 , 148 S. W. 559 , and cases cited; Ry. v. Shannon, 100 Tex. 379 , 100 S. W. 138 , 10 L. R. A. (N. S.) 681; State v. De Silva, 105 Tex. 95 , 145 S. W. 331 ; Accousi v. Furniture Co. (Civ. App.) 83 S. W. 1104 ; Baldacchi v. Goodlet (Civ. App.) 145 S. W. 328 ; “Addendum,” by this writer, in White v. White (filed June 30, 1917) 196 S. W. 508, 515 .

“Judicial acts, within the meaning of the Constitution of Indiana, are such as are performed in the exercise of judicial power. But the judicial power of this state is vested in courts. A judicial act, then, must be an act performed by a court, touching the rights of parties or property, brought before it by voluntary appearance, or by the prior action of ministerial officers — in short, by ministerial acts. See Waldo v. Wallace, 12 Ind. 569 , where the constitutional provisions are quoted. The acts done out of court, in bringing parties into court, are, as a general proposition, ministerial acts; those done by the court in session, in adjudicating between parties, or upon the rights of one in court ex parte, are judicial acts. 3 Blackst. Comm. p. 25.” Shoultz v. McPheeters, 79 Ind. 377 .

“A judicial duty within the meaning of the Constitution is such a duty as legitimately pertains to an officer in the department designated by the Constitution as judicial.” State v. Hathaway, 115 Mo. 38 , 21 S. W. 1084 .

‘Where the inquiry to be made involves questions of law as well as fact, where it affects a legal right, and where the decision may result in terminating or destroying that right, the powers to be exercised, and the duties to be discharged, are essentially judicial.” 6 Ruling Case Law, § 158.

The power to render judgments and decrees, and to make orders forever disposing of appeals in pending actions, and to grant or refuse rehearings on such appeals — such powers, in brief, as are conferred by said Relief Act upon what my Associates are pleased to call the “Committee of Judges,” unquestionably are “judicial powers.” Sanders v. Cabaniss, 43 Ala. 173 . Our Constitution vests those .powers in courts, and not elsewhere; and said “Committee” is not a court.

The suggested distinction between the judicial powers of a court and the powers of a judge thereof is one which has been recognized, very clearly, in Constitutions of Texas, and by our Legislature, in many statutes, and by our courts, including the Supreme Court, in various decisions. Among such provisions in former Constitutions were the following:

“The Supreme Court, and judges thereof, shall have power to issue the writ of habeas corpus, and, under such regulations as may be prescribed by law, may issue writs of mandamus, and such other writs as shall be necessary to enforce its own jurisdiction, and also compel a judge of the distinct court to proceed to trial and judgment in a cause.” Const. Tex. 1845, art. 4, § 3; Const. Tex. 1861, art. 4, § 3.

“The district court, * * * or the judges thereof, shall have power to issue all writs necessary to enforce their own jurisdiction, and [to] give them a general superintendence and control over inferior jurisdictions.” Const. Tex. 1861, art. 4, § 10.

“The Supreme Court and the judges thereof shall have power to issue the writ of habeas *1164 corpus, and, under such regulations as may be prescribed by law, the said court and the judges thereof may issue the writ of mandamus, and such other writs as may be necessary to enforce its own jurisdiction.” Const. Tex. 1866, art. 4, § 3.

“The said [district] courts, and the judges thereof, shall have power to issue writs of injunction, certiorari, and all other writs necessary to enforce their own jurisdiction, and to give them a general superintendence and control over inferior tribunals.” Const. Tex. 1866, art. 4, § 6.

“The Supi'eme Court, and the judges thereof, shall have power to issue the writ of habeas corpus, and, under such regulations as may be prescribed by law, may issue the writ of mandamus, and such other writs as may be necessary to enforce its own jurisdiction.” Const. Tex. 1SG9, art. 5, § 3.

“The said [district] courts, and the judges thereof, shall have power to issue the writ of habeas corpus and all other writs necessary to enforce their ow7n jurisdiction and to give them a general superintendence and control over inferior tribunals.” Id. § 7.

“The Supreme Court and the judges thereof shall have power to issue, under such regulations as may be prescribed by law, sthe writ of mandamus and all other writs necessary to enforce the jurisdiction of said court.” Const. Tex. 1876, art. 5, § 3.

“The Court of Appeals and the judges thereof shall have power to issue the writ of habeas corpus, and under such regulations as may be prescribed by law issue such writs as may be necessary to enforce its own jurisdiction.” Id. § 6.

“The said [district] courts and the judges thereof shall have power to issue writs of ha-beas corpus in felony cases, mandamus, injunction, certiorari, and all other writs necessary to enforce their jurisdiction.” Id. § 8.

Among Texas statutes making such distinctions these may be mentioned, although the constitutionality of many of them seems not to have been determined by the courts: Acts May 11 and 12, 1846 (Acts 1st Leg. pp. 200 and 249), Hartley’s Dig. arts. 2928, 643, referred to in Thorne v. Moore, 101 Tex. 211 , 105 S. W. 985 ; Vernon’s Sayles’ Tex. Civ. Stats, arts. 96, 150, 152, 166, 239m et seg., 240, 458, 473, 523, 743, 1080, 1526, 1528, 1529, 1592, 1595, 1660, 1713, 1714, 1772, 1787, 1788, 1793, 1800, 1802, 1811—9, 1811—21, 1811—38, 1811—40, 1811—59, 1811—67, 1811—83, 1811—99, 1811—110, 2016, 2017, 2073, 2098, 2128, 2169, 2185, 2201e, 2550, 3147, 3154, 4088, 4621, 4643, 4644, 5249, 6044, 6045, 6319m, 6508, 7094, 7434, 7437, 7446, 7747. See, also, Acts 1915, c. 39, § 4; chapter 17, § 4 (a); Acts 1917, c. 19, p. 31; chapter 89, p. 243; chapter 107, p. 296.

In the light of foregoing provisions of our state Constitution and hereinafter cited Texas decisions, the above-cited Texas statutes furnish food for much serious thought. Such distinction between powers of courts and powers of Justices lies conspicuously upon the face of even said Relief Act itself. Its caption declares the act to be one “granting additional powers to the Chief Justice and Associate Justices of the Supreme Court and of the Courts of Civil Appeals as incidental to the offices held by them,” and a corresponding declaration appears in section 6. In the declaration that such new powers are “incidental” to the office, rather than to the duties of the courts mentioned, fine discrimination is shown, probably in recognition of the fact that the new powers and duties which the act seeks to confer and impose upon Justices of Courts of Civil Appeals as sueli Justices only, are not even germane to the powers and duties of Courts of Civil Appeals, as sot out in the Constitution, and as defined '.by our statutes. Not reasonably could such powers be said to be “incidental” to the powers and duties of those courts.

To what pre-existing powers, then, are these new powers “additional”? As related to the Chief Justice, and to the Associate Justices, of the Supreme Court, it fairly' may be said that they are additional to (a) the powers which the Constitution expressly confers upon the Supremo Court, as a court; and to (b) the powers which the Constitution expressly confers on all members of that court, separately, as Justices of that court, to be exercised in that capacity, in chambers or in vacation, and not by the court; and to (c) the powers which the Legislature heretofore validly, pursuant to specific constitutional provision, has conferred upon Justices of that court, separately, to be exercised by them, respectively, in that capacity and not otherwise. But as to Justices of Courts of Civil Appeals the same reasoning cannot apply throughout, because, through a notable and apparently intentional omission, our Constitution has not conferred any power whatever upon them, separately, as Justices, to be exercised in that capacity, and not as a court, and has not authorized the Legislature to do so; hence, as to those Justices, the most that can be said is that these new powers are “additional” to the powers which have been granted by the Constitution to Courts of Civil Appeals, and to the powers which heretofore the Legislature has conferred upon those courts and has attempted to confer upon Justices of those courts (R. S. art. 1592), to be exercised by them, separately, as such Justices. But, inasmuch as the Constitution does not confer, nor expressly authorize the Legislature to confer, upon them, as Justices, any powers except such as they, collectively, have and exercise as a court, it is evident that the powers which this Relief Act of 1917 attempts, conditionally, to confer upon them, as “designated Justices,” are really to be exercised by them as individuals only. The reference to them as Justices of Courts of Civil Appeals serves no other purpose or function than to indicate the class of individuals out of which such designation is to be made.

Again, in authorizing the designation of three Justices of Courts of Civil Appeals to pass upon referred applications, section 2 of said act plainly restricts to the Chief Justice of tho Supreme Court, acting in that capacity and alone, and not otherwise, or, in the alternative, to any two of the Justices of that court, acting in those capacities, together, and not otherwise, the exercise of that power of designation; but, in treating of the reference to the designated Justices of such applications for writs of error, section 3 of the act provides that such reference shall be made by the “Supreme Court” or by “any two of the Justices thereof.” The distinction thus made is too plain to be ignored, without doing violence to that act; yet it has been ignored, in designating Justices of Courts of Civil Appeals under said act. Moreover, section 5 of said act provides that “the Supreme Court shall still have power to act upon applications for writs of error, when deemed expedient, and the same power is hereby conferred upon the Justices of that court, action by any two of whom shall be sufficient.”

It will be noted that thereby said act seeks to do these two distinct things: (1) To preserve the right and power of the Supreme Court, under pre-existing laws, to act, as a court, upon applications for writs of error; and (2) to confer “the same power” upon any two Justices of that court, this being the first attempt of the Legislature to do that, and said power being additional to the powers conferred by our Constitution upon Justices of that court, and additional to the powers which that instrument authorizes the Legislature to confer upon them. Article 5, § 3. In this connection it will be observed that, despite said *1165 provision that any two of the Justices of the Supreme Court may “act upon applications for writs of error,” the subsequent portion of section 5 expressly provides that in any case falling within any one of three therein enumerated classes “the application for writ of error shall be passed upon by the Supreme Court.” Consequently the legislative intent appears to be that such an exceptional application in any case belonging to any such class shall not be referred to the designated Justices of Courts of Civil Appeals, and shall not be acted upon by even two Justices of the Supreme Court, acting as such Justices only, but shall be acted upon by the Supreme Court, as a court, as formerly, and pursuant to pre-existing laws.

Furthermore, the emergency clause, embodied' in section 8, declares the necessity for haste in getting three Justices of Courts of Civil Appeals to work “in the disposition of business of the Supreme Court.” Inasmuch as that work is not within the jurisdiction of Courts of Civil Appeals, and is not, even remotely, related to any duty arising from, or growing out of, or incidental to, that jurisdiction, or to any power or duty of those courts, under the Constitution, or said Relief Act, or any other statute, and such designated Justices constitute no court or other organized tribunal (as is hereinafter shown), it is evident that such new work is by said Relief Act really imposed upon them individually. Consequently the declared haste is to get outside individuals, who happen to be Justices of Courts of Civil Appeals, busy in their individual capacities, in performing duties and in exercising powers which, under our Constitution and laws, devolve upon the Supreme Court, as a court.

Never before, since the amendment, in 1891, of the judiciary article of our Constitution, authorizing the creation of Courts of Civil Appeals, has the Legislature undertaken to confer elsewhere than upon the Supreme Court, as a court, the power of passing upon any application for a writ of error. Consequently, the effort, in said Relief Act of 1917, to confer that power upon any two Justices of the Supreme Court, also, like the effort therein to confer it, with certain exceptions, and contingently, in nearly all cases, upon such designated Justices of Courts of Civil Appeals, constitutes a radical departure from long-established constitutional and legislative policy, and indicates very strongly that, in the enactment of said Relief Act, the legislative mind must have been directed to the stated distinction between the ¿judicial powers of appellate courts when acting as courts and the powers of Justices of those courts when acting merely as such Justices, or as individuals. This fact, obviously, should be of controlling force in construing said Relief Act, and particularly so as to the manner of designating members of Courts of Civil Appeals to serve under that act. Nevertheless the stated distinction is one to which my Associates seem to attach no importance whatever in relation to either the validity or the construction of said act.

Among our Texas decisions which recognize the above-stated distinction are these: Hines v. Morse, 92 Tex. 194 , 47 S. W. 516 ; Griner v. Thomas, 101 Tex. 36 , 104 S. W. 1058 , 16 Ann. Cas. 944; Thorne v. Moore, 101 Tex. 205 , 105 S. W. 985 ; Ex parte Reeves, 100 Tex. 617 , 103 S. W. 478 ; Nalle v. City of Austin, 101 Tex. 48 , 104 S. W. 1050 ; Ashford v. Goodwin, 103 Tex. 497 , 131 S. W. 538 , Ann. Cas. 1913A, 699; Hodges v. Ward, 1 Tex. 244 ; Doss v. Waggoner, 3 Tex. 515 ; Jones v. McMahan, 30 Tex. 727 ; Hunton v. Nichols, 55 Tex. 224 ; West v. Burke, 60 Tex. 51 ; Wilson v. Wichita Co., 67 Tex. 647 , 4 S. W. 67 ; Brown v. Wheelock, 75 Tex. 385 , 12 S. W. 111, 841 ; Pittman v. Byars, 100 Tex. 518 , 101 S. W. 789 ; Couturie v. Crespi, 103 Tex. 554 , 131 S. W. 403 ; Hamill v. Samuels, 104 Tex. 46 , 133 S. W. 419 ; Pecos & N. Tex. Ry. Co. v. Cox, 104 Tex. 556 , 140 S. W. 1078 ; Id., 105 Tex. 40 , 143 S. W. 606 . See, also, Ellis v. Harrison, 24 Tex. Civ. App. 13 , 56 S. W. 592 , 57 S. W. 984 ; Railroad v. Alexander (Civ. App.) 135 S. W. 703 ; Wier v. Hill, 58 Tex. Civ. App. 370 . 125 S. W. 366 ; Chickasha Milling Co. v. Crutcher (Civ. App.) 141 S. W. 357 ; Brown v. McClendon, 56 Tex. Civ. App. 551 , 121 S. W. 903 ; Accousi v. Furniture Co. (Civ. App.) 83 S. W. 1104 ; Neville v. Miller (Civ. App.) 171 S. W. 1109 , and c. c.; Rosamond v. Murff (Civ. App.) 185 S. W. 1067 . As to appointment of receiver in vacation, see Hdw. Co. v. Mfg. Co., 88 Tex. 468 , 27 S. W. 100 ; Land Co. v. Blevens, 12 Tex. Civ. App. 410 , 34 S. W. 828 ; Drug Co. v. Freeman, 15 Tex. Civ. App. 451 , 39 S. W. 628 ; Williams v. Odell (Civ. App.) 47 S. W. 151 , in none of which, it seems, was the constitutionality of the statute questioned. The foregoing lists of decisions are not exhaustive. The great weight of them is to the effect that, when judicial power is conferred by our Constitution upon a “court,” it means the court-in session and not in vacation. It does not mean the Justices, or the judges, or the judge of the court, in chambers or in vacation.

By a petition addressed to the Chief Justice and Associate Justices of our Supreme Court, they were asked, in vacation, to grant in vacation, a writ of mandamus tb compel the clerk of that court to transmit to the clerk of a Court of Civil Appeals a certain order of the Supreme Court. The first question was:

“Have the judges of the Supreme Court during vacation the power to grant a writ of mandamus in any case?”

That court,» through Chief Justice Gaines, said:

“1. Section 2 [3?] of article 5 of our Constitution, which provides for the organization of the Supreme Court and defines the powers and jurisdiction which are conferred upon it and which may .be conferred by the Legislature, contains this provision: ‘ * * The Supreme Court and the Justices thereof shall have power to issue writs of habeas corpus as may be prescribed by law, and under such regulations as may be prescribed by law said court and the justices thereof may issue writs of mandamus, procedendo, certiorari, and such other writs as may be necessary to enforce its jurisdiction.’ * * * Upon the construction of this provision the determination of the first question must depend. Courts, the terms of which are fixed by law, have no power to sit save during term time, unless for special reasons, authority to hold a special session, or to hear and determine some special class or classes of cases during their ordinary vacation, be conferred upon them. * * * The Constitution limits the sessions of the Supreme Court to a specified - term of nine months and fixes the place where it must sit and does • not specially provide for the exercise of its jurisdiction at any other time or place. It follows that it can act at no other time or place. But the provision in question confers the same jurisdiction with respect to the writs therein specified, upon the justices of the Supreme Court, which is conferred upon the court itself, and neither directly nor indirectly limits the time or fixes the place at which they are to act. In the exercise of the jurisdiction thereby conferred they may act, as justices of the Supreme Court and not as the court itself, either in term time or in vacation. The power, however, is limited to the grant of such process as may be necessary to enforce the jurisdiction of the court. The provision, in our opinion, is a wise one. It may be necessary to issue a writ to enforce the jurisdiction of the court in vacation as well as in term time; and for this reason, doubtless, the power was conferred upon the Justices of the court. - The present case serves to illustrate the point. Here the clerk, being without a decision of the Supreme Court to guide him and pursuing the *1166 usual practice of the court, cautiously declined to transmit to the Court of Civil Appeals a certificate necessary to a prompt enforcement of- a judgment of that court; and although the relator felt aggrieved by this course, she would have been without remedy but for the power conferred upon us, as Justices of the court, to hear and determine in vacation. the case made by her petition.” (Italics mine.) Hines v. Morse, supra.

In an action for a writ of mandamus to compel a district judge to vacate his vacation order temporarily suspending a county judge from office, our Supreme Court, through Mr. Justice Williams, said:

“The application for mandamus was presented to some of the Justices of this court in vacation and they were asked then to issue the mandamus under the authority of article 946, Revised Statutes, but were of the opinion that the Legislature was empowered by section 3 of article 5 of the Constitution to confer such original jurisdiction upon the court only, and not upon the judges thereof. The cause was therefore set down for hearing in term time. * * * ” Griner v. Thomas, 101 Tex. 38 , 104 S. W. 1059 , 16 Ann. Cas. 944.

Similarly, this writer, some two years ago, and after making a somewhat careful study of the distinction which our Constitution and statutes make between the judicial powers of courts and the judges thereof, declined to issue, in vacation of the Supreme Court, a writ of mandamus not necessary for enforcement of its jurisdiction. In an action for a writ of mandamus to compel a district judge to vacate an order, made by him in vacation, upon a hearing and after notice, requiring publication of the result of a local option election, our Supreme Court refused the writ of mandamus, saying, through Mr. Justice Williams:

“Section 8 of article 5 of the Constitution, which'defines the power and jurisdiction of the district court, and of the judges thereof, provides: ' ‘And said court and the judges thereof shall have power' to issue writs of habeas corpus, mandamus, injunction, and certiorari, and all writs necessary to enforce their jurisdiction.’ This provision has been construed as giving the substantive power to issue the writs named in all cases when courts of law or equity, .under settled rules, would have the power to issue them, whether they be necessary to enforce some jurisdiction given by the other provisions or not. This provision is, in itself, a grant of distinct jurisdiction and powers which do not depend upon the other provisions defining classes of cases or amounts in controversy over which also jurisdiction is given. County of Anderson v. Kennedy, 58 Tex. 616 . The well-settled construction of such a phrase as ‘said court and the judges thereof’ is that it means the court when in session, and the judges acting in vacation. The language therefore equally empowers the court, when in session, and the judge, when the court is not in session, to issue the writs. The power is conferred upon the judge in the same language that confers it upon the court. Unquestionably the court has power to issue the peremptory mandamus. How, then, can the same words that grant it to the court be held not to have' granted it to the judge? * * * The power lodged with the district judge is not an arbitrary one. He is the same officer that exercises the power when presiding over the court, and acts judicially, after a hearing, in the same manner in which the court acts. Nor was the power unknown to our judicial system before the adoption of the present Constitution. The Acts of May 11 and 12, 1846, conferred it upon the judges of both the Supreme and district courts. Hartley’s Dig. arts.’ 643, 2928. It is given to judges also in a number of other jurisdictions. 23 Cyc. p. 55, and authorities cited. The decision in the case of Murphy v. Wentworth, 36 Tex. 147 , was made under the Constitution of 1869, which did not contain the provision which we have discussed. It seems to be irreconcilable with the decision in Jones v. McMahan, 30 Tex. 719 . Neither of those cases, however, involved the construction of a provision like that in the present Constitution, and we are not called upon to determine which, if either, of them is correct.” Thorne v. Moore ,supra.

The foregoing decisions carry clear recognition of the principle that Justices and judges, acting in -those capacities and not as a court, can exercise only such judicial powers as the Constitution, by way of exception, expressly confers, or authorizes the Legislature to confer, upon them as judges. Under the circumstances it is therefore as remarkable as it is regrettable that the principle mentioned was not consistently regarded in drafting said Relief Act.

Our Supreme Court, through Judge Brown, held: “The Legislature had no power to -require the judges of the district courts to hear and determine contested elections in vacation; the Constitution confers -that power upon the district courts,, which means the court in session. * * * This court will not direct the respondent to hear the contest in vacation, because the law that so provides is void.” Ashford v. Goodwin, supra.

In Ex parte Reeves, supra, it was held by our Supreme Court that under section 29 of article 5 of the Constitution “the Legislature is without power to provide for the court sitting at a called term,” although section 17 of the same article provides that the county court “shall dispose of the probate business either in term time or vacation as may be provided by law.” See, also, Stewart v. Kemp, 54 Tex. 248 . In the early case of Hodges v. Ward, supra, in an opinion by Judge Wheeler, it was held that no judgment or decree could be rendered by a district court “in chambers.”

In Doss v. Waggoner, supra, through Judge Hemphill, it was said: “The court had no jurisdiction to try and determine causes at the time these judgments purport to have been rendered. There was, in fact, no court in session, and no judgments could by law have been pronounced; and, consequently, they are not only absolute nullities, in the ordinal^ signification of the term, when applied to judgments of courts having no jurisdiction over the subject-matter of the parties, but they are not even the acts of a court, and are, therefore, not susceptible of appeal or the subjects of revision in an appellate tribunal.”

In Jones v. McMahan, supra, under section 6 of article 4 of the Constitution of 1866, which provided, as above shown, that district court® and “the judges thereof” shall have power to issue writs of injunction, certiorari, “and all other writs necessary to enforce their own jurisdiction,” it was held that the power resided in the judges as well as in the courts.

In Hunton v. Nichols, supra, under Act Feb. 5, 1840 (Laws of Republic, 4th Cong-., p. 110), “regulating the duties of probate courts and the settlement of succession,” it was said: “There is not, in the 72 sections which compose this statute, a line or syllable from which can be deduced any power or authority in the Chief Justice, as such, to make partition of estates or decree the sale of lands in vacation. * * * This power is conferred upon the; probate court. It is the highest attribute of its jurisdiction.”

In Wilson v. Wichita County, supra, the county judge approved, in his own name, in open commissioners’ court, the bond of the county treasurer. Held, that did not make the approval the act of the court. With reference to the statute concerning statements of fact it was said: “Article 1293 requires the authentication to be made by the court. This implies that it must be made by the judge while sitting as a court. Counsel for plaintiff in error contends that the term ‘court,’ as there *1167 used, means the same as ‘judges of the court,’ and he refers to decisions of other states which seem to support that view, but cites none from the courts of this state. * * * That the terms ‘court’ and ‘judge,’ as used in the statute relating to the regulation of appeals, are not intended to be used interchangeably, is, we think, settled by the Supreme Court of this state. Couturie v. Crespi [ 103 Tex. 554 ] 131 S. W. 404 ; Pittman v. Byars, 100 Tex. 518 , 101 S. W. 789 .” Chickasha Milling Co. v. Crutcher, supra.

In Accousi v. Furniture Co., supra, in relation to an order granting additional time for filing a statement of facts and bills of exception, it was said: ‘‘This power is inherent in courts, both at law and in equity and is not dependent for its existence upon any statute. But in the absence of express statutory authority, it can only be exercised by the court in the discharge of its judicial functions as such. * * ,s ¶0 determine whether a judgment has been rendered, so that it may be entered nunc pro tune, is a judicial function, to be exercised only by the court wherein it is claimed the judgment sought to be entered was pronounced. This often requires the hearing and consideration of testimony before it can be judicially determined that a judgment sought to be entered nunc pro tune was actually rendered. The exercise of this power to hear and determine is of its very nature judicial; and, if there be degrees in judicial functions, is as high an exercise, of judicial power as that which is called into play in rendering the judgment itself. We know of and can find no authority for the exercise of such power by a court or its judge during vacation; and such power, from its very nature, in the absence of legislative authority (if, indeed, it is within the power of the Legislature to grant it), can only be exercised while the court is in session. The very meaning of the term ‘vacation,’ as applied to a court, imports an absence of power to render judgment or grant interlocutory judicial orders.”

Several of the above-cited decisions are to the effect that no appeal will lie from the judgment of a judge rendered during vacation, or in chambers, because it is not the judgment of any court. “Though a judge of the district court may decide certain matters in vacation, and render judgment therein, yet such judgment, whether interlocutory or final, is not the judgment of the court over which he presides, but is merely his judgment as a district judge sitting in vacation. In such a case, unless a right of appeal be given by positive law, none exists. Section 4; Eney. PI. & Pr. 365. Since our statutes give the right of appeal only from judgments of the district and county courts, and since the judgment in this case was a judgment in neither court, we think that we acquired no jurisdiction to reverse the judgment.” Pittman v. Byars, 100 Tex. 518 , 101 S. W. 789 .

In Couturie v. Crespi, supra, the Supreme Court, through Judge Gaines, said, in substance, that an order extending the time for the preparation and'filing of a statement of facts must be made “by the court, which means by the court in session and presumably at the term at which the judgment was rendered.”

In Hamill v. Samuels, supra, the Supreme Court, through Chief Justice Brown, said: “The court, or the judge of the court, may, for good cause shown, extend the time, with the limitation only that it must not delay the filing of the statement of facts with the transcript in the appellate court within the time prescribed by law.”

In P. & N. T. Ry. Co. v. Cox, 104 Tex. 556 , 140 S. W. 1078 , in reviewing the same question, the Supreme Court, through Mr. Justice Ramsay, said: “It may be conceded that the word ‘court’ is many times used as synonymous with and interchangeably with the word ‘judge,’ but in the particular clause controlling us here it is used in its strictly legal sense, and that this construction must control.”

In the report of another hearing of the same ease, the question being as to the construction rather than as to the validity of the statute, the court said: “The act of the Thirty-First Legislature, as copied above, is in plain terms and conferred authority upbn the judge of the district court to make in vacation the order that was entered in this case.” 105 Tex. 40 , 143 S. W. 606 .

In Brown v. McClendon, supra, the Court of Civil _ Appeals raised, but did not decide, the question as to whether a justice of the peace may hear a cause on its merits out of term time.

Many of the above-mentioned Texas cases, some of which appear to be somewhat conflicting, are cited, not so much to show the status of the law upon tlie point involved, as to call attention to the great number of instances in which the courts of this state have recognized said distinction between the powers of courts and the powers of judges. The stated distinction is recognized by many state Constitutions, and by decisions of courts of various states.

“The king himself, though he be intrusted with the whole executive power of the law, cannot sit in judgment in any court, but his justice and the laws must be administered according to the power committed to and distributed among his several courts of justice.” 1 Bacon, Abr. 619.

“The gladsome light of jurisprudence, the judicature, only belongeth to the judges.” 4 Inst. 73.

“Our” Constitution vests the judicial power of the state not in officers, but in courts. In speaking of the constitutional provision, in Waldo v. Wallace, 12 Ind. 569 : ‘It will be observed that tbe judicial power is vested in courts, not in officers.’ It is dear that the common law so vested it, and that the Constitution there continues it. Cooley, Const. Lim. (4th Ed.) 74.” People v. Noble, supra.

‘“The judicial power, properly so called, has never been vested anywhere but in courts.” Abbott v. Mathews, 26 Mich. 176 .

“Where the Constitution divides the powers of the government into three distinct departments, and confides .each department to separate magistrates, the Legislature has no judicial power, and can confer none upon a court or judge. Norwalk St. R. Co.’s Appeal, 69 Conn. 576 , 37 Atl. 1080 , 39 L. R. A. 794.” 8 Cyc. 813, note 53.

In holding invalid a.statute which sought to authorize a judge, at chambers, ‘to render a judgment in eases of insolvent debtors, it was said:

“By article 6 of our Constitution the judicial power is vested in one Supreme Court, in circuit courts, in probate courts, and in justices of the peace. The Legislature is also authorized to establish municipal courts in cities and courts of conciliation. The courts referred to in this article are permanent organizations for the administration of justice. * * * The exercise of judicial power in its strict legal sense can be conferred only upon courts named in the Constitution.” Risser v. Hoyt, 53 Mich. 185 , 18 N. W. 611 .

“If the Legislature should attempt to establish independent tribunals and vest them with judicial powers, the constitutional formalities would have to be complied with to give them validity.” Carson v. Smith, 5 Minn. 58 ( Gil. 58 ), 77 Am. Dec. 539 .

In holding void a statute which assumed to confer judicial power upon a notary public, the Supreme Court of Michigan said:

“This presents the naked question whether the Legislature possessed the constitutional power to confer such jurisdiction upon the notary. The proceeding authorized by the statute first cited, for dissolving attachments, is as *1168 clearly a judicial proceeding as the trial of a cause in.any court of the state; and the power ‘to hear and determine’ such application under the statute is as clearly a judicial power as that exercised by a justice of the peace or a judge upon the bench. It is not lite a mere reference to take proof or compute amounts to bo reported to a court of record for their judicial action, but it is ‘to hear and determine’ questions both of law and fact. Section 1, art. 6, of the Constitution declares: ‘The judicial power is vested in one Supreme Court, in circuit courts, in probate courts, and in justices of the peace. Municipal courts of civil and criminal jurisdiction may be established by the Legislature, in cities.’ This, beyond all controversy, vests the whole judicial power of the state in courts and officers named in this section, unless there be some further provision in the same Constitution, conferring upon some other court or officer a part of such judicial power, or authorizing the Legislature to confer it; and in the latter case it can only be possessed or conferred by such further provision expressly, or by necessary implication, which would have the effect to take the case out of the general provision above quoted. This must be so upon principle, or the Constitution itself must be subject to legislative repeal. It is also well supported by authority. See 2 Story on Const. §§ 1500 to 1592; People ex rel. City of Rockford v. Maynard, 14 Ill. 420 : Gibson v. Emerson, 2 Eng. (7 Ark.) 173.” Chandler v. Nash, 5 Mich. 409 .

“Under our Constitution such powers as are strictly judicial in their character can only be vested in certain courts which are named in the Constitution itself. The circuit courts, as courts, have such powers. The judges, as judges, out of court, do not possess them, and cannot be vested with them.” Railway v. Dunlap, 47 Mich. 456 , 11 N. W. 271 .

A statute provided that an injunction of a certain character should not be granted, except by the court and on notice. Such an injunction, granted ex parte by a justice of the court, was held void. Wilkie v. Railroad Co., 12 Hun (N. Y.) 242. A statute authorizing the Supreme Court to direct the filing of an information w,as held not to authorize judges of that court to do so in their individual capacities. Ohio R. Co. v. State, 10 Ohio, 360. Under the Code a county judge had no powers except while holding a quarterly court. Arthur v. Green, 3 Metc. (Ky.) 75.

Under the Constitution of Colorado, which provided that the Supreme Court “shall have power to issue writs of habeas corpus, mandamus, quo warranto, certiorari, injunction, * * * with authority to hear and determine the same,” it was held that the Justices of that court, acting singly, in vacation, are without jurisdiction and authority to issue writs of habeas corpus or to determine matters arising thereon. In re Garvey, 7 Colo. 502 , 4 Pac. 758 . Constitutional provisions conferring upon the Supreme Court authority to issue certain writs do not confer that authority upon judges of that court in vacation. People v. District Court, 28 Colo. 485 , 69 Pac. 1066 .

“It is contended that our statutes confer on the judge the authority to hear and determine the wnole issues in a case of this kind in vacation. If there is such a statute, it is in violation of section 1, art. 6, of our Constitution, above quoted.” State v. Woodson, 161 Mo. 444 , 61 S. W. 252 .

Rule 17 of the Supreme Judicial Court of Maine ( 70 Atl. ix ) provides: “When a motion for a new trial is made for any other cause [than that the verdict is against the law or evidence] the evidence in support thereof shall be taken within such time and in such manner as the court, at the next ensuing term, shall order, or the motion will be regarded as withdrawn.” That court held that by said rule “no power is conferred upon a Justice in vacation to make such order.” Mitchell v. Emmons, 104 Me. 76 , 71 Atl. 321 .

Likewise it was held that a statute authorizing “the court,” upon overruling a motion for new trial, to enter judgment as of a former term, conferred no authority upon a judge in vacation to enter judgment. Greenwood v. Bradford, 128 Mass. 296 .

“As a general rule all judicial business must be transacted in term, whether there is any express direction to that effect or not. Such judicial business as may be done by the judge out of court is exceptional, and must find its warrant in some express provision of the statute. Larco v. Casaneuava, 30 Cal. 664 [560].” Gruner v. Moore, 6 Colo. 530 . See, also, Miles v. Strong, 68 Conn. 278 , 36 Atl. 55 ; State v. Jackson, 21 S. D. 494, 113 N. W. 881 , 16 Ann. Cas. 37.

The South Carolina Constitution of 1895 gave to the Supreme Court, as a court, “power to issue writs or orders of injunction,” and also provided: “Each of the Justices of the Supreme Court and judges oj: the circuit court shall have the same power at chambers to issue * * * interlocutory writs or orders of injunction as when in open court.” Article 5, § 25. Thereunder it was held that a Justice of the Supreme Court has power at chambers to grant an interlocutory writ of injunction in a cause not pending in that court. Salinas V. Aultman, 49 S. C. 378. 27 S. E. 407 .

“All judicial power by the Organic Act, like the Constitutions of the states and of the nation, is vested in the courts; a prohibition upon its exercise by the executive or legislative department, but the judicial power therein conferred upon and limited to the courts, is that judicial power which in the legal acceptation of the words can be exercised only by the court. * * * Tlie courts have exclusive power to hear and determine those, matters which affect the life or liberty or the property of the citizen; all other rights, while they may he in a sense judicial, are not, so far within the jurisdiction of the courts that their exercise by another department would be void.” Territory v. Cox, 6 Dak. 510 .

“By the ninth section of the ‘Act establishing the territorial government of Wisconsin,’ the judicial power of the territory is vested in the Supreme Court, district courts, probate courts, and in justices of the peace. These are the courts for the disposition of all the judicial business of the territory, and it is not compc_-tent for the legislative assembly to create any more. The creation of any additional judicial tribunal is in the Congress of the United States. The legislative assembly is authorized to limit, by law, the jurisdiction of the several courts above mentioned, both appellate and original— but no further.” Smith v. Odell, 1 Pin. (Wis.) 449.

The Constitution of Indiana provided: “The judicial power of the state shall be vested in one Supreme Court, in circuit courts, and in such other courts as the General Assembly may establish.” Thereunder it 'was said: “All judicial powers are, by force of this provision, vested in the courts of the state. The Legislature has no authority to invest any other tribunals than the courts with judicial powers. * * * Nor can these powers be vested elsewhere than in the tribunals designated or indicated by the Constitution. Judicial powers cannot be delegated. Taking and following as 'guides these fundamental principles, we are led to the conclusion that judicial powers cannot he vested in officers, such as master commissioners, appointed by the judges of the courts. By the express provision of the paramount law, the whole judicial power of the state is vested in courts. * * * The predominant idea in all the definitions of the courts and the text-writers is that a court is a tribunal organized for the purpose of administering justice, and presided over by a judge or judges. * * * Our Con *1169 stitution means by the term _ ‘court’ judicial tribunals presided over by a judge or judges. * * * The Legislature may establish courts, but cannot vest the judicial power in any other tribunals.” Shoultz v. McPheeters, 79 Ind.

Later, in a noted case, in passing upon the constitutionality of “An act for the appointment of Commissioners of the Supreme Court,’ etc., the Supreme Court of Indiana, through Chief Justice Elliot, said: “Section 1 of article 7 of the Constitution vests the judicial power of the commonwealth in the courts. It ordains that ‘the judicial power of the state shall be vested in a Supreme Court, in circuit courts, and in such other courts as the General Assembly may establish.’ The effect of this provision is to vest in the courts the whole element of sovereignty known as the judicial, established by the Constitution and the laws enacted under it, except in a few instances, where powers of a judicial nature are expressly and specifically lodged elsewhere. Kilbourn v. Thompson, 103 U. S. 168 , 26 L. Ed. 377 ; People v. Keeler, 99 N. Y. 463 , 2 N. E. 615 , 1 Cent. Rep. 157, 52 Am. Rep. 49 .”

After quoting the section of the Constitution which, like ours, declares that the three departments of government shall be kept separate, the opinion proceeds: “The words employed are clear and strong. There is more than a mere theoretical separation, or else words are powerless and Constitutions are mere empty fulminations. The provisions of the Constitution we have quoted, taken in connection with those which prescribe, define and limit the powers of the other departments of government, remove all doubt and make it incontrovertibly plain that the courts possess the entire body of the intrinsic judicial power of the state, and that the other departments are prohibited from assuming to exercise any part of that judicial power. The authorities sustain our conclusion, for there is neither conflict nor clash of opinion, nor is there even diversity. The difficulty is not to find authority, but to select cases which best express the universal doctrine that all judicial power is exclusively in the courts, and the departments of government are absolutely separate and distinct. * * * The Constitution vests the judicial power in every instance, and the Legislature in none. The Legislature has no judicial power, and can confer none upon any person or tribunal. Under the Constitution it may establish courts, but it does not invest the courts with judicial power; the Constitution alone can do that, for all judicial power comes from that instrument, and is vested by it in courts and judges. Speaking of the mayor of a city, the Supreme Court of Illinois said: ‘Unless he was such a judge, or justice of the peace, no law could vest him with judicial powers; for in those officers alone is the entire judicial power of the state vested by the Constitution. As mayor alone, the law would be as incompetent to vest him with, judicial power, as it would the Governor or Speaker of the House of Representatives.- The Constitution itself has disposed of the entire judicial power of the state, and has exhausted that subject. The Legislature may multiply some of the officers who are by the Constitution vested with judicial powers; but when this is done, it is the Constitution which vests the power.’ People v. Maynard, 14 Ill. 419 . It is the Constitution, and not the Legislature, which makes the investiture, and it is the courts and judges who are invested with the judicial power. Shoultz v. McPheeters, 79 Ind. 373 ; Gregory v. State, 94 Ind. 384 , 48 Am. Rep. 162 ; Little v. State, 90 Ind. 338 [ 46 Am. Rep. 224 ]; Pressley v. Lamb, 105 Ind. 171 , and authorities cited, 185, 186 [ 4 N. E. 682 ], 2 West. Rep. 704; Kuntz v. Sumption [ 117 Ind. 1 , 19 N. E. 474 , 2 L. R. A. 655]; Smythe v. Boswell [ 117 Ind. 365 , 20 N. E. 263 ]; and Campbell v. Board of Com’rs [ 118 Ind. 119 , 20 N. E. 772 ]; Hall v. Marks, 34 Ill. 358 ; In re Griffiths [ 118 Ind. 83 , 20 N. E. 513 , 3 L. R. A. 398, 10 Am. St. Rep. 107 ], As the Constitution of its own vigor, anjl as the sole source of the judicial power, vests that power in designated tribunals, the Legislature can neither vest it elsewhere nor create new judicial offices, nor divide the duties of the judicial .offices designated by the Constitution.” State v. Noble, 118 Ind. 350 , 21 N. E. 244 , 4 L. R. A. 101, 10 Am. St. Rep. 143 . See, also, below, an excerpt from In re Cleveland, 51 N. J. Law, 311, 17 Atl. 772 ; 8 Cyc. 813.

Although some of the state Constitutions above referred to are different from ours, in that they do not permit the Legislature to create “additional” courts, the reasoning of the foregoing- decisions is applicable here to the extent that our Constitution vests -the judicial power in (a) courts therein named, or in (b) justices or judges of those courts, or in (c) courts to be created by the Legislature, pursuant to constitutional provision therefor; and that reasoning plainly and conclusively negatives the idea that any portion of the judicial power of the state may be vested by the Legislature elsewhere, as, for instance, in Justices of the Supreme Court, or in designated Justices of 'Courts of Civil Appeals, in manner and form as attempted by said Relief Act.

In view of the foregoing definitions and discussions of judicial power, and the well-established and generally recognized distinction between the judicial power of courts and special powers of justices' or judges, and the specific provisions of the present judiciary article of our state Constitution, vesting judicial power in the courts alone, except where otherwise therein specially stated, and carefully enumerating the powers conferred or which may be conferred upon Justices of that court, and the failure of that instrument to confer any power upon Justices of Courts of Civil Appeals, other than as a court, I cannot understand how any one can consider valid a statute which attempts to divert from the Supreme Court to a majority of the Justices of the Supreme Court, and contingently to designated Justices of Courts of Civil Appeals, acting together, any portion of that supreme judicial power which our state Constitution vests exclusively in our Supreme Court, for exercise by it alone in eases and matters within its own exclusive supreme appellate jurisdiction, nor how it can be held that the Supreme Court, as a court, may, under said Relief Act, appoint men to serve under that act.

The evident purpose of said amended judiciary article of our state 'Constitution was to mark out and define a complete judicial system, subject only to the rights of the Legislature (a) to create additional courts, and (b) to make, by statute, certain conformations in the jurisdictions of courts, and (c) to confer only certain stated powers upon only certain enumerated Justices and judges. Marbury v. Madison, 1 Cranch, 137 , 2 L. Ed. 60 ; Territory v. Cox, 6 Dak. 522 . Many of the provisions of that article, establishing courts and distributing the “judicial power,”'and particularly the provision that there shall be “one Supreme Court,” were taken, substantially or literally, from judiciary articles of the Constitution of the United States and the Constitutions of various sister states, after such provisions had received a settled construction inhibiting the law-making department from abolishing that court and from conferring its constitutional powers upon even a legislative court of another name, and from conferring upon any other court or tribunal any portion of that which, essentially, is the supreme judicial power of the,Supreme Court. Various such decisions are cited herein. Consequently, according to both reason and the settled rules of construction, our courts should presume that such settled constructions of said judiciary provisions were imported into our Constitution.

That Constitution • having created a judicial system . comprising various courts of different ranks and for different purposes, and having authorized the Legislature to create additional *1170 courts, and haying declared that, with certain stated exceptions, the entire judicial power of the state shall be vested in such “courts,” it must be assumed that the purpose of those who framed and adopted that instrument was that the judicial power to be vested in and exercised by each such court shall correspond to its rank, and shall be appropriate for the accomplishment of the purpose for which that particular court was created. Darnell v. Lyon, 85 Tex. 455 , 22 S. W. 804 , 960. In discussing the effect of section 1 of article 5 of our Constitution of 1876, which vested the judicial power of this state in certain enumerated courts “and in such other eourt[s] as may be established by law,” our Supreme Court, through Chief Justice Roberts, said: “It defines the general limits of their respective jurisdictions, and, either expressly or from the terms used, indicates the subject-matter of their action, their relation and mode of proceeding in the exercise of their jurisdictions. * * * It was certainly the object of the framers of the Constitution to mark out a complete judicial system, by defining generally the prov-' ince of each of the courts, by reference to the objects confided to the action of each, .and the relation of each to the others. To that extent it must be held to be permanent, and not subject to change by the action of the Legislature, except as a change may have been provided for. This is plainly, though incidentally, indicated by a special provision for a change in the jurisdiction of the county court. Const. 1S76, art. 5, § 22. The relation of the original and appellate courts is well defined in the system. The Supreme Court is an appellate court in reference to the district court as a court of original jurisdiction in civil cases. Const, art. 5, § 3.” Ex parte Towles, 48 Tex. 431 — 439.

In a later case the Supreme Court, through Judge Stayton, afterward Chief Justice, said: “It must be presumed that the Constitution conferred upon each court created by it all the jurisdiction which it may have intended it should exercise, and that the Legislature has no power to add to, or withdraw therefrom, except as such power is expressly conferred by the Constitution upon the Legislature, as in section 22, art. 5.' If any such general power had been •conceived to exist in the Legislature, the section of the Constitution referred to would have been wholly unnecessary.” Ex parte Whitlow, 59 Tex. 274 . See Williamson v. Lane, 52 Tex. 335 ; also references in Odell v. Wharton, 87 Tex. 173 , 27 S. W. 123 , to amendment of section 8, art. 5. “On the question whether the Legislature had power to enact the law relied upon, courts ought to look to the fact that through such a power the Legislature would be enabled practically to destroy some of the most important courts created by the Constitution; and it never ought to be held that such a power exists in the Legislature, unless it clearly appears to have been conferred by the Constitution. A power in one department to destroy another, in whole or in part, would be anomalous.” Chief Justice Stayton in Darnell v. Lyon, supra.

Such being the organic purpose, it must be true that the share or portion of judicial power so vested in our Supreme Court is supreme judicial power. Such power differs, in essential respects other than that of finality, from mere appellate judicial power, such as is vested in Courts of Civil Appeals, district courts, and county courts, much of which is “final,” but none of which is “supreme” in any other sense. It is true that our Constitution and laws together inhibit appeals from various courts in several enumerated classes of cases, and that the effect thereof is to make final the judgments of those courts therein, rendering such courts, in, a sense, but to that extent only, supreme courts in those classes of cases; but that does not render them supreme courts, even as to those cases, in the sense in which our Supreme Court is a 'supreme court by the terms of the Constitution itself, nor change the quality or character or nature of the supreme judicial power which the Constitution confers upon that court to be exercised by it as a court, and exclusively, in all cases whatsoever in which its appellate jurisdiction attaches by virtue of the Constitution itself, or by virtue of a statute prescribing that appellate jurisdiction in conformity with the provisions of the Constitution. Whether our Supreme Court is or is not the only possible court, tribunal, or agency to which an appeal from a Court of Civil Appeals may. be provided by statute, still, and in. any event, the Legislature may not validly provide for appeals from Courts of Civil Appeals to any tribunal, instrumentality, or agency which is not, in the full constitutional sense, a court; and it cannot confer upon even such an intermediate court appellate jurisdiction concurrent with that which continuing valid statutes confer upon the Supreme Court, because, in the very nature of things, it cannot confer upon such intermediate, court any supreme judicial power wdiatsoever.

In discussing the authority of the Legislature, under the Virginia Constitution, relative to supreme judicial power, Baldwin, J., of the Supreme Court of Appeals of that state, said, in 1849:

“The supremacy of this court is to be found, not in the extent of its jurisdiction, or the amount of its business, hut in the paramount force and authority of its adjudications — a force acting directly in controlling, without being controlled by, other tribunals — an authority operating indirectly, from the respect and deference due to the highest tribunal known to the Constitution and the laws. The influence of its authority extends beyond the range of its power. It is not limited by its actual, but is coextensive with its potential, jurisdiction' — with its capacity to receive from the laws unlimited control over all cases decided by the subordinate tribunals. The conformity of the other courts to its principles is not a slavish submission to the lash of power, but a willing and cheerful obedience, yielded from a sense of propriety and duty.” Sharpe v. Robertson, 5 Grat. (46 Va.) 606.

In the same case the same subject was discussed by Allen, J., as follows:

“Nor does its supremacy result from the exercise of appellate jurisdiction. Every court in the commonwealth is an appellate court in certain cases. Nor is it a consequence of the finality of its decisions in cases of appeals; for the judgments of every other court are final within certain limits, whether the cases be brought before them by appeal or original process. Nor does its supremacy depend on the importance of the controversies submitted to its cognizance. The General Court by the existing law decides finally in cases involving the life of.the 'citizen. The principle upon which the supremacy of the court rests is not to be found in any of these circumstances. We have courts endowed with all these attributes, and yet they are confessedly subordinate tribunals. It is the consequence of the fact that the form of the court cannot be changed or modified at the will of the Legislature. It must exist as a Supreme Court or not at all, and because its judgments are not only final by the law giving it jurisdiction, but there exists no power to subject them to revision; otherwise it would cease to be the highest, and, if so, the court of last resort. The court can act in no case except by virtue of and in the mode prescribed by law; and the Legislature may at their discretion, enlarge or limit its jurisdiction. But when it has acted upon a case confided to its jurisdiction, the judgment is binding on all. Though existing laws may make thp judgments of other courts final within certain limits, or over a particular ¿lass-of cases, or in all cases decided by them, the Legislature can, by a different regulation, subject all the decisions to be pronounced by such courts to review-in some higher tribunal, or the Supreme Court. *1171 But it is incompetent on the part of the Legislature to subject a decision, which may be rendered by this court, to revision elsewhere. No tribunal exists, or under the Constitution can be called into existence, which can reverse its judgments. Being thus irreversible, its judgments stand, from the necessity of things, as authoritative expositions of the law, whenever the same question arises in other cases. For it is to be presumed that the court, from principles of public policj', and for the repose and security of private rights, will adhere to its matured opinion, and apply the same rule to all cases of like character. Where the decision of an inferior court is pronounced in a case from which no appeal is allowed, it furnishes the law of the case, but is not authority which binds the same or other tribunals, because there is no assurance that the principle announced as law will be sustained in the court of the last resort. * * * It is not the power of granting appeals, but that of deciding them as a court in the last resort, and of causing the decisions to be respected and obeyed by all other courts in the state, that denotes in the judicial tribunal the residence of supreme appellate power.”

Supreme judicial power embraces these four elements: (1) That of determining whether the case belongs to a class which is within the appellate jurisdiction of the Supreme Court; (2) that of determining whether the appeal has been duly perfected; (3) that of deciding the cause, upon its merits, finally and authoritatively, by a decision which will operate as a precedent in like cases; (4) that of ultimately compelling obedience to and due observance of said decision. Henderson v. Beaton, 52 Tex. 29 ; Accousi v. Furniture Co. (Civ. App.) 83 S. W. 1104 ; Loving v. Hazelwood (Civ. App.) 184 S. W. 358 ; Chandler v. Nash, 5 Mich. 409 ; Townes, Ele. Law, supra.

In Risser v. Hoyt, 53 Mich. 185 , 18 N. W. 611 , it was said: “But if the constitutional objections in regard to judicial power to act were all to which the act was obnoxious, it is possible that in its main features it might be upheld and enforced through the circuit courts. An objection more plainly fatal is that the act gives no sufficient means whereby it may be enforced, and the rights of parties protected.”

The foregoing excerpts are presented here as aids in determining what are the real powers and functions of our Supreme Court. Their condemning relevancy lies in the fact that said Belief Act, in addition to dealing with the appellate jurisdiction of the Supreme Court, deals also with its said supreme “judicial power,” as follows: (1) It confers upon (a) a majority of the Justices of the Supreme Court, and (b) conditionally upon Justices of Courts of Civil Appeals, a large share of supreme judicial power to be exercised by them, otherwise than as a court, in an enormous number and a great range of cases which, according to every test other than that prescribed by said Belief Act itself, clearly fall and lie within the appellate jurisdiction of the Supreme Court, under valid pre-existing, unrepealed, and continuing statutes, although in no such instance is the decision or action upon the application for writ of error in any sense that of a court “in the last instance,” or of any court whatever. (2) Conversely, to the same extent, in all cases in which the application for a writ of error is dismissed or refused by Justices of the Supreme Court, or by designated Justices of Courts of Civil Appeals, comprising about three-fourths of all cases appealed from Courts of Civil Appeals, said Belief Act practically prevents, in toto, the exercise by the Supreme Court of its supreme judicial power, and in all instances in which thé application for a writ of error is granted otherwise than by the Supreme Court, as a pourt, said Belief Act prevents the exercise by that court of its supreme judicial power in determining whether the cause is or is not within its appellate jurisdiction.

It is true that under our present judiciary article the power of the Legislature to change the jurisdiction of the Supreme Court is plain and indisputable; but that fact does not. affect the principle that, by the Constitution, the Supreme Court was established to exercise, exclusively, its supreme judicial functions over, in, and upon all causes within its jurisdiction, as defined by either (a) the Constitution itself, or (b) the Legislature in a manner and form prescribed by that instrument; the source of the power or authority by which such jurisdiction is conferred being wholly immaterial in the premises, so long as it actually exists.

I freely concede that, under such safeguards and restrictions as the Constitution itself imposes. by the language in which it creates the different courts comprising our judicial system and indicates the character of their respective functions and duties, the Legislature has full power and authority to change, adjust, define, restrict, and prescribe, by statute, the appellate jurisdiction of the Supreme Court, and also to regulate, by statute, the procedure according to which an appeal to that court may be taken in certain stipulated classes of cases; but I strenuously deny the right of the Legisla-rme to shift elsewhere, or to circumscribe or prevent the full and unabridged exercise by that court of all or any of its supreme judicial power in any cause or matter lying within its jurisdiction.

I maintain that, regardless of the extent to’ which the Legislature may ’ restrict or extend the appellate jurisdiction of the Supreme Court, the judicial power which it, as a court, may exercise within that field, is both supreme and exclusive. It is supreme, not alone because it is final, nor because there is no higher state court to which a particular cause may be taken, but because, in its quality and texture, in its very essence, that judicial power- is of a supreme nature in a constitutional sense in that it is to be exercised (a) both finally and authoritatively, and as a binding precedent in like cases, to decide the case, and (b) to enforce the decree or action of that court therein, compelling, if need be, due observance thereof by the litigants and by all other courts and by all officers of the state; and it is exclusive because it is given by the Constitution to that court alone, to be exercised by it as a court, and not otherwise.

Our Constitution unquestionably contemplates that whenever and so long as any certain class ■of cases is within the jurisdiction of the Supreme Court, that court, acting as a court, and it alone, can exercise in, over, and upon such case the supreme judicial power of the state. Consequently, any law which, like said Belief Act, purports to confer elsewhere authority to exercise all or any portion of its supreme judicial power in a case falling, under the Constitution and laws, within its supreme appellate jurisdiction, is void. Upon principle, and under the decisions, where a Constitution confers certain jurisdiction upon a court, without authorizing the Legislature to add to or subtract therefrom, the Legislature cannot alter such jurisdiction; it being presumed that the Constitution gave such court all the jurisdiction intended to be exercised by it, and no more.

The Constitution of the united States declares : “The judicial _ power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to, time ordain and establish.” Article 3, § 1. In distributing that power it provides that certain classes of cases shall be within the original, and all others within the appellate jurisdiction of the Supreme Court. Section 2. However, Congress attempted by an act to confer upon that court original jurisdiction over still another class of cases; but that court held said act void, saying, through the Chief Justice:

“It has been insisted, at the bar, that as the' *1172 original grant of jurisdiction to the Supreme and inferior courts is general, and the clause assigning original jurisdiction to the Supreme Court contains no negative or i-estrictive words, the power remains to the Legislature to assign original jurisdiction to that court in cither cases .than those specified in the article which has been recited, provided those cases belong to the judicial power of the United States. If it had been intended to leave it in the discretion of the Legislature to apportion the judicial power between the Supreme and inferior courts according to the will of that body, it would certainly have been useless to have proceeded further than to have defined the judicial power, and the tribunals in which it should be vested. The subsequent part of the section is mere surplus-age, is entirely without meaning, if such is to be the construction. If Congress remains at liberty to give this court appellate jurisdiction, where the Constitution has declared their jurisdiction shall be original, and the original) jurisdiction where the Constitution has declared it shall be appellate, the distribution of jurisdiction, made in the Constitution, is form without substance. Affirmative words are often, in their operation, negative of other objects than those affirmed; and in this case a negative or exclusive sense must be given to them, or they have no operation at all. It cannot be presumed that any clause in the Constitution is intended to be without effect; and therefore such a construction is inadmissible, unless the words require it.” Marbury v. Madison, 1 Cranch, 137 , 2 L. Ed. 60 .

Restrictive effect was given to the words conferring original jurisdiction, negativing the power of Congress to enlarge that field. “As a tree falls, so shall it lie;” and as the Constitution fixed it so it was held. “While recognizing the rule that constitutional limitations upon legislative action must be construed in favor of the power of the Legislature, and be either expressly declared or clearly implied (State v. Wilson, 265 Mo. 1 , 175 S. W. 603 ), it must also be borne in mind that, when so expressed or implied, they are to be construed as mandatory rather than directory (State ex rel. v. Hitchcock, 241 Mo. 433 , 146 S. W. 40 ), and consequently exclusive in their terms.” State v. Commission (Mo.) 192 S. W. 960 . See, also, Nalle v. City of Austin, supra.

A New Jersey statute, which provided that, pending controversies over municipal offices, the Chief Justice of the Supreme Court should designate persons to sei’ve temporarily, was held void by Beasley, C. J., who declined to make such designation, saying: “My conclusion is that the function to be discharged by me, as thus legislatively prescribed, is to decide in what persons the legal title to these offices is vested, and, by that measure, to direct who, for the time being, shall exercise their duties. The function thus delineated is plainly a judicial one. Viewing the matter, then, from this standpoint, it appears to me entirely evident that I cannot exercise .the power thus attempted to be conferred, inasmuch as such a power is not one that can be granted by the Legislature. The right to adjudicate as to the constitutionality of legislation, as to the legality of an alleged acceptance of a statute by a popular vote* as to the efficacy of a particular method of submission of a law to such vote, as to the title to public office, is a power resident immemorially in the highest courts of the state, and such right is not alienable at the legislative will. This jurisdiction is fixed in these tribunals by the Constitution, and must remain so fixed until that fundamental instrument be modified. Sitting in the character of Chief Justice I can no moi'e, even though acting under a legislative sanction, decide efficaciously with respect to a person’s title to his office than I can similarly decide with respect to the title to his land. I know of no way in which a person who is color-ably and peaceably in possession of a public office can be dispossessed or ousted from it except by the writ of quo warranto, or by some mode of proceeding that is its substantial equivalent, and that process is, and always has been, one of the prerogative writs of the Supreme Court, and. which, consequently, except as to form, is absolutely beyond legislative control. Nor can the cognizance which the Supreme Court, by means of this procedure, exercises over the title to public office, be imparted by the Legislature, either in whole or in part, to an individual or to any other tribunal. The consequence is' that, if I were to attempt to adjudicate touching the title to these offices now in question, I should do so with thei conviction that I was simply arrogating to myself a prerogative of the Supreme Court of the state of a high and indefeasible character. The doctrine of the inviolability of the jurisdiction of our constitutional courts has ■been so frequently and fully elucidated in our judicial decisions, and is so completely established, that all citation of authority on the subject seems to me to be obviously superfluous. My conclusion is that the power conferred is a judicial one, belonging inalienably to the Supreme Court, and therefore that the attempted grant of it to me is a nullity.” In re Cleveland, 51 N. J. Law, 311, 17 Atl. 772 .

The reasoning in Marbury v. Madison relative to the restrictive force of provisions concerning jurisdiction applies as well to the above-quoted provisions of our state Constitution conferring certain enumerated powers upon Justices of the Supreme Court, as Justices only, and not as a court; wherefore it should be presumed and held that thereby said Justices were given all the powers which it was intended they should exercise, as Justices only, thus placing it beyond the authority of the Legislature to confer upon them additional powers to be exercised by them, jointly or severally, as Justices. But see section 5 of our Relief Act. In support of the principle stated are many of the hereinabove cited cases, and many others might be added. They establish a fundamental rule of constitutional construction, which demonstrates both the invalidity of so much of said Relief Act as confers additional judicial powers upon Justices of the Supreme Court, and the error which has been made by that court in designating, by an order of. court, men to serve under said act. Said rule and principle of constitutional construction, as exemplified by Marbury v. Madison and In re Cleveland, obviously controlled the decisions of our Supreme Court in Hines v. Morse, and in Griner v. Thomas, and in Thorne v. Moore, and in Ashford v. Goodwin, and in Ex parte Towles, and in Ex parte Whitlow, all supra, and in various other above-cited Texas cases.

Why should the plain meaning of our Constitution and of said decisions, and the universally accepted canons of construction, all be disregarded and ridden down by the lawmaking department and by the Supreme Court itself, in order to confer upon any two members of that court judicial powers which the Constitution deliberately omitted from the list of their enumerated powers, as Justices, and expressly conferred upon the Supreme Court, as a court, to be effectively exercised in term time only? From all responsibility therefor, both now and in future, I desire to bo absolved. Furthermore, under the operation of said principle and rule, and in view of the fact that, in addition to conferring judicial powers upon courts, as courts, our Constitution confers certain powers upon Justices of the Supreme Court, separately, as Justices, and cwtain powers upon judges of the Court of Criminal Appeals, separately, as judges, and certain powers upon judges of district courts, as judges, and certain powers upon judges of county courts, as judges, but does not confer, and does not, in terms, authorize the Legislature to confer, any power whatsoever upon any Justice of any Court of Civil Appeals, separate *1173 ly, as such Justice, I regard as. invalid those provisions of said Relief Act which purport to confer powers upon Justices of Courts of Civil Appeals.

Why that discrimination, if it was not made with the intention and purposes of withholding-judicial power from those Justices to whom none was granted by the Constitution? The stated omission is, I think, deeply significant, and strongly suggests, if it does not conclusively show, a definite purpose that Justices of Courts of Civil Appeals, as Justices, shall not have or exercise any judicial power whatever, especially extraneous powers, but that they shall be and remain free to devote their entire time and energies to the great and responsible work assigned by the Constitution, or statutes, or both, to those courts, as coui-ts. Nalle v. City of Austin, supra. See, also, opinion of Stayton, C. J., in Darnell v. Lyon, 85 Tex. 459 , 22 S. W. 304, 960 ; Dean v. State, 88 Tex. 290 , 30 S. W. 1047 , 31 S. W. 185 .

In Moore v. Nation, 80 Kan. 672 , 103 Pac. 107 , 23 L. R. A. (N. S.) 1115, 18 Ann. Cas. 397, according to the syllabus of the case prepared by Burch, J., the author of the opinion, the Supreme Court of Kansas held: “The duties of a public office include all those which fairly lie within its scope, those which are essential to the accomplishment of the main purposes for which the office was created, and those which, although incidental and collateral, are germane to or serve to promote or benefit the accomplishment of the principal purposes. All such duties are official, and the incumbent is obliged, to perform them. Duties not so related to an office are unofficial, cannot rightfully be attached to it, and the incumbent is not obliged to perform them.”

See 75 Tex. 385 . 12 S. W. 111, 841 ; Whitener v. Belknap, 89 Tex. 281 , 34 S. W. 594 ; 103 Tex. 491 , 131 S. W. 535 , Ann. Cas. 1913A, 699.

In so far as the jurisdiction, functions, rights, powers, duties, and authority of such “designated Justices.” as set out in said Relief Act, are concerned, they are in no wise related to Courts of Civil Appeals any more than to district courts, or county courts; and that controlling fact stands out in bold relief. . In no sense has any Court of Civil Appeals jurisdiction over any such application for a writ of error. Moreover, the Relief Act declares that none of such designated Justices “shall participate in acting upon applications in a cause decided during his incumbency by the court of which he is a member.” Section 4.

At least as to Justices of Courts of Civil Appeals the declaration of the act that the powers thereby conferred are “incidental to the offices held by them, respectively,” states a purpose rather than a fact. Even the Legislature cannot change the stubborn fact that the new and added powers and duties thus thrust upon those men are not only not “incidental,” but are inconsistent with and repugnant to and derogatory of thoir plain and mandatory constitutional and statutory duties as members of those courts. Justices of those courts cannot, at the same time, serve in different capacities, and in different cases. The plain and unequivocal duties of “the offices held by them” require them to attend upon the sessions of their own courts, and to hear the oral arguments, and to act with the other members of such court in transacting its business. The exercise of said added powers and tlie discharge of said superadded duties, under said Relief Act, take either all or a majority of such “designated Justices” away from their respective supreme judicial districts, and all of them from their respective Courts of Civil Appeals, for indefinite and extended periods of time, thereby denying to them the performance of duties vested in, and the exercise of privileges granted to, them by our Constitution and ■laws, thereby very seriously disturbing and crippling those courts, and hindering and delaying them in the discharge of their judicial functions, and sometimes, through resulting delays, greatly disturbing and delaying the operations of the state, county, and municipal governments, and constantly depriving litigants, without their consent, of various constitutional and statutory rights in relation to jthose courts and all three members thereof respectively.

Said Relief Act recognizes that, necessarily, it will interfere with the work of the Courts of Civil Appeals, and plainly attempts to reduce such interference to a minimum. Section 2. T do not believe our Constitution leaves the Legislature free so to order, or to authorize Justices of the Supreme Court so to direct. And, to my mind, it seems absurd to say that the makers of the Constitution contemplated that in addition to exercising their powers and discharging their duties, as therein determined, the Chief Justice or Associate Justices of various Courts of Civil Appeals should ever be required, for any period of time, however long or short, to do any of the work, or

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