Ex parte Robert W. White. On Petition for a Mandamus, 4 Fla. 165

THOMPSON, Justice, pronounced the opinion of the Court Upon the rule on the Register to show cause why a mandamus nisi should not issue, the question presents itself— Has this Court jurisdiction, or the power to entertain this application, and award the relief asked for ? The 2d

section of the 5th

article of the Constitution provides that “ the Supreme Court, except in cases otherwise directed in this Constitution, shall have appellate jurisdiction only, which shall be co-extensive with the State, uncler such restrictions and regulations, not repugnant to the Constitution, as may, from time to time, be prescribed by law ; provided, that the said Court shall always have power to issue writs of injunction, mandamus, quo warranto, ha:-beas corpus, and such other remedial and original writs as-may be necessary to give it a general superintendence and control of all other Courts.” Thompson’s Digest, 50.

It cannot be doubted that this is' an application to this Court for the exercise of an original jurisdiction ; and it is argued for the petitioner, that the

section above cited gives the power to this Court to issue the writs specially named in all cases as its original jurisdiction, .and that the phrase with which the sentence concludes : “ as may be necessary to give this Court a general superintendence and control of all other courts,” is to be restricted to the “ other remedial' and original writs,” not specifically named. Nnd it is further contended that this

interpretation is necessai’y in order to render operative the exception in the first clause of the section, that “ the Supreme Court, except in cases otherwise directed in this Constitution, shall have appellate jurisdiction only for, unless the jurisdiction excepted is original and contained in the power to issue the writs specified, there-is none given by the Constitution but the appellate jurisdiction, and effect should be given to every part and clause of’ the instrument. The exception in the first clause of the

section under consideration was probably inserted by the Convention ex abundanti cautela, although it-, would hardly have been necessary, if any original jurisdiction had been granted in any other part of the Constitution to have enabled this Court to exercise it.

The language is general; it does not refer to any particular grant of jurisdiction ; the general character' of the Court was to be one of appellate authority, and it was to be confined to that, “ except in cases otherwise di- ■ sected.” It does not necessarily follow that some other jurisdiction must be intended to have been conferred by the Constitution, or if other jurisdiction is given, it should be original. The exception, however, may, and we think does, point to the power contained in the proviso.

The office of a proviso generally is either-to except something from the enacting clause, or to qualify or restrain its generality, or to exclude some possible ground of misinterpretation of it, .as extending to cases not intended by the Legislature to be .brought within its purview. Minis v. The United States, 15 Peters’ Reports, 445. As before remarked, the general ■character of this tribunal was intended to be appellate only.

An appeal is defined to be the removal of a cause from an inferior to a superior court (3 Blackstone’s Commentaries, 55); and it is said to be the essential criterion -of appellate jurisdiction that it revises and corrects the proceedings in a cause already instituted, and does not create that cause. Marbury v. Madison, 1 Cranch, 137.—1 Peters’ Condensed Reports, 282.

By a strict application of the term appellate jurisdiction it would seem that neither a mandamus nor any other original and remedial writ could issue from a superior court to any subordinate tribunal, unless it results as an incident to the appellate power in the revision and correction of the proceedings of a cause therein. Smith v. Jackson, 1 Paine Circuit Court Reports, 454. Hence the necessity of the proviso in this

section of the Constitution, to qualify and restrain the generality of the language used in the enacting clause, and to except therefrom the powers mentioned in the proviso. By this proviso power is given to issue writs of injunction, mandamus, quo ■warranto, habeas corpus, and such other remedial and original writs as may be necessary to give this Court a general .superintendence and control of all other courts, a power which we think was not necessarily included in the grant -of appellate jurisdiction.

It places this Court, with regard .to all other courts of this State in the same position, in this respect, which the Court of King’s Bench, in England, occupies in relation to the inferior courts of that kingdom*It gives a superintending authority and control — the power to overlook and to govern, check and restrain all other courts. The position, that the exception in this

section may refer to the power to issue the writs specifically enumerated as the original jurisdiction, and that the “ other remedial and original writs” not named, are to be alone controlled by the clause, “ as may be necessary to give this Court a general superintendence and control of all other Courts,” cannot be maintained upon any proper rule of construction.

The proviso forms but one sentence ; the writs specifically named are designed to illustrate the meaning intended more clearly than could be done by general terms; the terms, “ other remedial and original writs,” mean writs ejusdem generis, of a kindred character, such as writs of procedendo, prohibition, certiorari, &c., which are to effect a like object, the exercise of a superintendence and control of all other Courts. It is true that some of the writs thus specifically designated do not seem appropriate to the exercise of this power.

An injunction, for instance, though often used to restrain proceedings in another Court, yet is directed to, and acts upon, the parties alone; it neither assumes any superiority over the Court in which they are proceeding, nor denies its jurisdiction; but it is granted on the sole ground that, from certain equitable circumstances, of which the Court that issues it has cognizance, it is against the conscience of the party to proceed in the cause. Eden on Injunctions, 14.

So a quo warranto is a writ which lies for the government against any person or corporation claiming or usurping any office, franchise, or liberty, to inquire by what authority the claim is supported, in order to determine the right. Wharton’s Dictionary of Jurisprudence, 859. Cases, however, may arise, in which these writs may be useful in exercising this power, but if they do not, it is a matter of but little moment — it cannot alter tbe construction, or change the meaning of the instrument. It is very certain they can only be used, if at all, for the purposes and objects expressed. By the

interpretation which we give to this

section of the Constitution, effect is given to every part of it, and from it, we deduce the conclusion that the jurisdiction of this Court is two-fold — first, appellate jurisdiction proper, by which we understand the revision of the proceedings of the subordinate Courts, and the correction of errors in their judgments ; and, secondly, a general superintendence and control of all other Courts, and this by means of all appropriate, original and remedial writs known to the common law.

No original proceeding can be instituted in this Court, unless it be to exercise this power of superintendence or control over some other Court. Reference has been made to the Constitution of the State of Alabama, and to the action of its Supreme Court, in the cases of Mead v. Dunn, and Murray v. Ayers, cited from Minor’s Reports, 46, 323, as affording some aid in the proper

interpretation of this section. On comparison of the Constitution of Alabama wifii that of our State, it is found that in the clauses defining the jurisdiction of the respective Supreme Courts, the only difference consists in the use of the terms “inferior jurisdictions,” in the place of “ all other Courts,” in the conclusion of the section. In the cases above mentioned, the question of jurisdiction was not raised or decided — in one of the cases, it is suggested by the Court as a doubtful- point. In the case of Davis v.

The Tuscumbia Railroad Company, 4th Stewart & Porter, 421, 440, which was an original application by bill in equity for an injunction to stay waste, the Court says: “We have no doubt that this Court has authority to issue writs of injunction, when a case calling for the exercise of such authority is presented by the billbut does not give the reasons for such opinion. It was probably deemed unnecessary, inasmuch as the injunction asked for was refused, because of a want of equity in the bill. In the case of the State ex relatione v.

Paul, 5th Stewart & Porter, 40, the question of the authority of the Supreme Court of Alabama to exercise the original jurisdiction of granting a quo warranto in the first instance was expressly waived, and the writ denied on other grounds; but in ex parte Simonton et al., 9th Porter, 383, 389, which was an application for a writ of habeas corpus, praying that the right of the petitioners tobe admitted to bail might be considered and allowed, the question of jurisdiction was brought directly before the Court for its determination, and it was held that the Supreme ■Court “ does not possess the constitutional power to award the wait which the petitioners have asked for, unless it be to give it a general superintendence and control of inferior jurisdictions.

To bring a case within these qualifjdng terms, it should be shown either that some Court, or that some Judge of a Court, invested with authority to act in the premises, has undertaken to decide upon the case of a party aggrieved, or else without any just cause therefor, has refused to entertain the same.” This may now be considered the settled

interpretation of this

section of the Constitution by the Supreme Court of Alabama, having been recognized in the subsequent cases of John, a slave, v. State, 1st Alabama Reports, 95. Ex parte Mansony, Ibid, 98. State v. Williams, Ibid, 342. Ex parte Tarlton, 2d Alabama Reports, 35. In the case of the State v. Porter, 1st Alabama Reports, 688, 708, the Supreme Court of Alabama .extend the authority .of that Court to entertain original jurisdiction of a writ of quo warranto to cases in which no Court subordinate to the Supreme Court could act.

Without expressing any opinion of the propriety of the decision in the ease last cited, we consider that the view taken by the Supreme Court of Alabama, in tbe case of Simonton, of the Constitution of that State, agrees substantially with that we have expressed in relation to the Constitution of Florida; and as the petition in this case does not ask for the exercise of the superintending and controlling power of' this Court upon the action of any other Court, the prayer of the petition- must be denied, and the rule discharged with costs.