Ex Parte Henry Henderson, 6 Fla. 279

BALTZELL, C. J., delivered the opinion of the Court. This is an Application for amadamusto the Judge of the Circuit Court of the Eastern Circuit to hear and adjudicate an appeal taken from a Justice of the Peace of Putnam County. The Constitution of the State provides that “ in cases tried before a justice of the peace, the right of appeal shall be secured under such rules and regulations as may be prescribed by law.” “Art. 5,

section 10th. The first State Legislature provided that “ the Circuit Courts respectively shall have and exercise the original and appellate jurisdiction conferred by the Constitution of this State and all original and appellate jurisdiction had by the Superior Courts of the several districts of the Territory of Florida, and of the County Courts of the several counties of the Territory, under the laws of the Territory not inconsistent with the constitution and laws of the State.” Laws 1845 Thomp. 54.

Amongst the laws passed by the first Territorial Legislature in 1822 we find an appeal given to the Circuit Court, on all judgments over ten dollars, and it was to be tried as [soon as] an original cause open to all legal testimony, “p. 92. In 1823 and ’24, the circuit Court was directed to hear and determine appeals from justices in a

summary way without pleading in writing, according to the justice of the case. p. 244. In 1832 the Superior Courts were directed to try such cases anew on their merits and without requiring written pleading. Thomp. 364. And so the laws have continued to the present day. It is contended now that the Circuit Court cannot adjudicate these cases, having no power to do so under the Constitution of the State but that this duty belongs to and should be performed by the Supreme Court. It is very obvious that the Constitution designed some of the tribunals created by it to discharge this function.

It seems to have been an object of such consideration with its framers, as to require a special provision, showing that their attention was directed and addressed to the very subject.

Whilst we admit our own impressions, derived from witnessing the admittéd and uncontested operation of the law, as well under the Territorial as under the State Government for a period of near thirty yeai’s under the Superior Courts of the Territory as well as the Circuit Courts of the State, to be adverse to the position assumed by the intelligent Judge of the Circuit, we have yet in deference to his opinion endeavored to consider the subject with reference to its merits, and a determination to give to the arguments on that side the fullest and most deliberate consideration.

Very fortunately the question may be decided free from the perplexities attending the conflict between the Federal and State judicatories, often involving points of vital interest to the cause of civil liberty ; for it is not to be denied that this blessing under our complex system of Government, can alone be secured by the mutual observance and respect of the proper boundaries existing between the two sovereignties.. The question so important in this aspect, ceases in a degree to have that paramount interest when regarded between citizens of the same State, under the State Constitution.

Then the great concern is to give to parties in Court, through the tribunals provided by the constitution, a full, fair and'impartial trial, and ensure as far as may be, a rightful decision of the matter in contest. Such will be our aim on the present occasion. We do not concur in the opinion that the ease of an appeal from a Justice of the Peace is a case of appellate jurisdiction, in the sense in which this term is used in the-Constitution confering it on this Court.

The fact is, it is of a mixed character, having but one ingredient of appellate power, in that it has its origin in the Inferior Court, whilst in all other respects it is and from the commencement, as well by the Legislature as the Courts, has been treated and regarded as if originally instituted in the Circuit Court, with the single exception,- that written pleadings are not required. The case is directed to be tried anew in the Circuit Court, and is to be continued after Judgment, until final execution. This undoubtedly is the exercise of original jurisdiction.

Here is no revision and correction of error of law merely, no remitting of the case below for further trial “An appeal is a process of civil law origin and removes a cause, entirely subjecting the fact as well as the law, to a review and a retrial. A writ of error is a process of common law origin, and it removes nothing for re-examination but the law. The former mode is usually adopted in cases of equity and admirality jurisdiction,—the latter in suits at common law tried by a jury.” 3 Story Com. Conf. 628. 3 Black.

Com. 66. 3 Dallas 321. 6 Wh. 402. “ The Judgment of the Court of Common pleas and of all inferior Courts in England, if erroneous, must be brought under the review of this Court (the King’s Bench) for revision and correction; the Judgments of the Common pleas and of other inferior Courts of record, when the proceedings are according to the course of the common law, by writ of Error; the judgments of inferior Courts of record when the proceedings are

summary or different from the course established by the common law, by writ of certiorari, and judgments of the inferior Courts not of record, by writ of false judgment.” 4 Arch. prac. 4. So in New York “it is well settled that on a return to a common law certiorari no other questions can be raised than those relating to the jurisdiction of the Court or officer before whom the proceedings are had, and that decisions as to the admission or rejection of evidence or instructions to a jury on submitting the case to their consideration, cannotbe reviewed by certiorari, the policy of the law in creating these

summary jurisdictions being, that their decisions on the merits shall be final and conclusive, and that if they err upon questions either of law or fact, the parties are without remedy.” 1. Graham’s Prac. 377. “This writ, the certiorari, is to restrain the return of all inferior magistrates, within their legal grasp. If they go wrong, upon the evidence, it is the misfortune of the parties. 17 Wendell 668. “So a certiorari was refused because it was founded not on a want of jurisdiction, but on the merits.” Nichols vs. Williams 8 Cow. 13. Key. vs. White, ad. 2. Denio 549.

The People vs Vermilyea 7 Cow. 108.” In very recent cases says the author above quoted “ the Supreme Court of New York has wholly denied their power to re-examine on certiorari, the decisions of inferior jurisdictions on questions of fact, or on the legality of their decisions within their jurisdictions, or that their tribunals are to state facts in their return at all, except'such as respects their jurisdictions.” 1 Graham 378. Starr vs. Trustees of Rochester, 6 Wend., 564, 17, ib. 64. 2 Hill 9—398.

The appeal then given by the constitution is a proceeding unknown to the English Statutes and common law, hence the rules of distinction of a technical character under those laws are inapplicable to it. It is the Statutory regulation existing under the Territorial Government that the framers of the constitution had in view and intended to secure in making the special laws under consideration, and we have already seen that in these statutes the case is treated as an original cause “to be tried anew,” otherwise the clause has no operation and will be of no avail.

Considered in this light, we feel no difficulty in regarding the constitution as having allusion to these statutes and designing their continuance, and in holding the case to be of original jurisdiction. In this connection we think proper to remark that the Circuit Courts of the State perform the office and discharge the functions of the Court of King’s Bench of England, and not the Supreme Court of the State. This latter is the Court of last resort, and has its analogy in the Supreme Court of the United States and the Courts of Appeal of the States.

Its action is original in the very few cases stated by the Constitution, and that rather in aid of its appellate jurisdiction; its appropriate office is to revise and correct the action of the Inferior Courts. The Circuit Court partakes in a degree of these powers, as we shall see by reference to the jurisdiction of the Court of King’s Bench. “Its jurisdiction is very bright and transcendent. It keeps all inferior jurisdictions within the fbounds of their authority, &e. It superintends all civil corporations in the kingdom.

It commands magistrates and others to do what their duty requires, in every case jwhere there is no other special remedy. It protects the liberty of the citizens by speedy and

summary interposition.” 3 Black. Commentaries, 42. In case of trial before the Circuit Court, the party, if dissatisfied and the sum besufficent, maytakehisappeal to the Supreme Court, but the case is tried there not anew as before the Circuit Court, but upon errors shown to the Court, in the record', by a bill of exceptions, and this constitutes the exercise ‘ of appellate power in a common law case, to which the Supreme Court is confined in its adjudication of such ■cases.

But if this Court were competent both by the constitution and laws, and could empannel a jury to try such cases, it is very obvious they could not by possibility dis? charge the duty. The Court, is holden once a year in four districts, in one county of each district. What then would become of appeals taken in other distant counties ? Is it not obvious that the right would be in name merely, and of little or no value?

Not so with the Circuit Courts, organized to transact civil and criminal business in every county in the State, whose performance of this duty for so many years past, with such entire satisfaction to the public, is the best evidence that the power has been rightfully and properly confided. ■, If the power were actually appellate, we do not perceive the objection to its being confided to the Circuit Court. What objection can there exist to the exercise of this power by both Courts ? None that we can preceive.

It certainly increases the chances of right and tends to ■the advancement of justice without injury, to any. Of the exercise of this power by the Circuit Court, it snay be remembered, as was well expressed in argument, that the term “only" used in the clause confering the jurisdiction on the Supreme Court, is ommitted in the clause confering the jurisdiction on the Circuit Courts. Now why this omission, unless there was design and a disposition to restrict, not to confine the jurisdiction as in the case of the other Court? We are not disposed, however, to rely upon this view, strong and potent as it may be.

The objection is, that there is no express grant of the power. Of objections of a like character to the constitution of the United States, the Supreme Court say “ the constitution unavoidably deals in general language. It did not suit the purposes of the people in framing this great charter of our liberties to provide for a minute specification of its powers, or to declare the means by which these powers should be carried into execution. It was foreseen that it would be perilous and difficult, if not an impractibie task.

The in-strument was not intended to provide merely for the exigencies of a few years, but was to endure for a lapse of ages, the events of which were locked up in the incontrovertible purposesof providence. It couldnot be foreseen what new changes and modifications of power might be indispensable to effectuate the general object of the charter and re" strictions and specifications, which at the present might seem salutary, might in the end prove the overthrow of the system itself.

Hence its powers are expressed in general terms, leaving to the Legislature from time to time,'to adopt its own means to effectuate ligitimate objects and to mould andmodel the exercise of its powers, as its own wisdom and thepublic interests should require. Hunter vs. Martin, 1 Wh., 304, 326, 327.

Again, in another opinion of the same enlightened trh bunal, on another occasion, we have an extension of the same enlarged views : “ A constitution which should contain an accurate detail of all the minute subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, and of the various subjects of jurisdiction of which its Courts may respectively take cognizance, would partake of the prolixity of a legal code and could scarcely be embraced by the human mind.

Its nature, therefore, requires that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose these objects be deduced from the nature of the objects themselves.”— McCulloch, vs. State of Maryland 4, Wh., 407. Again : “ Had the faculties of man been competent to the framing of a system of Government, which would leave nothing to implication, it cannot be doubted that the effort would have been made by the framers of our Constitution. The fact, however, is otherwise.

There is not in the whole of that admirable instrument, a grant of power which does not draw after it others not expressed, not vital to their exercise, not substantive- and independent indeed, but auxiliary and subordinate. There is no phrase in it which excludes incidental and implied powers, and which requires that every thing granted shall be expressly and minutely described.” Anderson vs. Dunn 6, Wh., 204. Story, Com. Con., 418. Again: “ It is said that the very distinction taken in the Constitution between original and appellate jurisdiction, pre-supposes that when the one can be exercised the other cannot.

The exercise of appellate jurisdiction is far from being limited by the terms of the Constitution to the Su¡óreme Court. There can be no doubt that Congress may create a succession of inferior tribunals, in each of which it may vest appellate as well as original jurisdiction. This results from the very nature of the judicial power in the Constitution. There is nothing in the instrument which restrains or limits the power, and it consequently must subsist in the utmost latitude of which it is in its nature susceptible. 1 Wh., 337, 9, ib. 820, 6, ib. 392.

Again: “ It is admitted that affirmative words are often in their operation, negative of other objects than those affirmed; and that where a negative or exclusive sense must be given to them, or they have no operation at all, they must have that negative or exclusive sense. But where they have full operation without it; where it would destroy some of the most important objects for which the power was created, then we think affirmative words ought not to be construed negatively.” 6 Wh., 395.

Again: “ It has been suggested that an affirmative pro4 vision, in a particular case, excludes the existence of the like provision in every other case, and a negative provision in a particular case, admits the existence of the same thing in every other ease. Both of these deductions are or may be confounded in solid reasoning.

Thus it was objected to the Constitution, that having provided for the trial by jury in criminal cases, there was an implied exclusion in civil cases, as if there was not an essential difference between silence and abolition—between a positive adoption of it in every class of cases, and a discretionary right to adopt or reject it in all or any other cases.

One might, with just as much propriety, hold that because Congress has power to declare war, but no power is expressly given to make peace, the latter is excluded; or that because it is declared that no bill of attainder or expost facto law shall be declared by Congress, therefore, Congress possess, in all other cases, the right to pass any laws.

The truth is, that in order to ascertain how an affirmative or negative provision excludes or multiplies others, we must look to the nature of the provision—the subject matter—the objects and scope of the instrument ; these and these only can properly determine the rule of construction.” 6 Wheaton, 395. Federalist, No. 83.

Again: “ The truth is that where the words confer only appellate jurisdiction, original jurisdiction is most clearly not given; but where the words admit of appellate jurisdiction, the power to take cognizance of the suit originally, does not necessarily negative the power to decide upon it on appeal, if it may originate in a different Court.” 9 Weaton, 820, 21. We have extended these quotations to some length, that a clear and just view of these exalted instruments may be fixed in the mind and the importance of their observation be fully felt.

They are not directly to the point, as in some respects there is not an equal similitude in the provisions of the Constitution of the United States and of our State. Their application will yet be at once perceived.

Indeed where could there be an appeal for information on this interesting subject, but to the works and writings of those great men to whom, above all others, we are indebted for the blessings of the liberty we enjoy ; who framed and constructed the fabric of our Government upon a basis that Ave trust is perpetual, and to whom we turn in difficulty as to the great luminary, which sheds light and heat upon the world.

We are instructed by them of the high nature and important character of these instruments, that they are not to be construed in a narrow and restricted light; that the absence of a particular power or its silence, does not ne. cessarily exclude legislation on the subject; that to do this there must be inconsistency, contrariety, opposition, restriction or prohibition, or that the power has been already executed. In the bill of rights attached to our Constitution, it is declared “ that to guard against transgression upon the rights of the people, we declare that every thing in this

article is excepted out of the general powers of Government and shall forever remain inviolate, and that all laws contrary thereto, or to the following provisions, shall be void.” Art. 1st., declaration rights 27 Sec. Constitution. We do not perceive repugnancy or contrariety in the exercise of this jurisdiction by the Circuit Court, nor injury, nor inconvenience. On the contrary, we think great detriment and injury would arise to the public from the contrary course.

To hold even that the Circuit Court has no appellate jurisdiction, no superintendence or control over other Courts, corporations and officers, would be to strip it of most important functions and render it powerless and inefficient in a great degree, for many of the high purposes of justice. With such action, the symmetry of the organization of the Courts is preserved; without it, disorder and confusion intervene. Especially so far as the present case is concerned, we have the experience of age—time has consecrated and improved it—fixed it in the affections of the people and to them the loss would be irreparable.

We perceive this in the fact, that of the very many cases which have been taken to each term of the Circuit and Superior Court, for thirty years past, scarcely half a dozen of them have found their way to the Court of Appeals or the Supreme Court. Another fact is of no light consideration; no attempt at any time has been made to amend, alter or improve the law. Were it matter of doubt then under this state of facts, we should feel extreme reluctance to overthrow the practice or declare its unconstitutionality.

If the sums are inconsiderable, we see no reason for denying to the man of small means the right of adjudication and trial of his case by the Superior tribunals, equally with his neighbor, who has a case of larger amount. We have given due consideration to the case cited from Ohio of Kent vs. Mahaffy, 2 Ohio Reps., 498, but find in it no conflict with the positions we have assumed. It decides that the Supreme Court of that State will not issue a writ of injunction to the Court of Common Pleas of the State, as this would be the exercise of original jurisdiction.

To this we have no objection; it is in effect the same as the decision made by this Court in ex parte White, 4, Florida, 170. It is claimed that the case of Ponder vs. Graham, supports the position of the Circuit Judge, as it holds “ that a State Constitution is a restriction of power primarily possessed.” 4 Florida, 33. The question in that case was as to the validity of

an act of the Territorial Legislature, with which the Constitution of the State adopted thirteen years afterwards, had no connection. If the meaning is that restriction is the characteristic of State Constitutions, we are not prepared to admit it.

The great powers of Government are given subject to such restraints only, as the experience and wisdom of ages have proved to be needful to the protection of the citizen, and such further restrictions upon the agents of the Constitution, the associate departments of Government, as will secure the proper working of the machine, and prevent its efficiency from being impaired or destroyed. We conclude then that whether the jurisdiction to be exercised in the case be original or appellate, the Circuit Court has the power and should exercise it.

But inasmuch as we do not question that the Court below would at once accede to the views of this Court in this respect, we shall direct the opinion to be certified and withhold the writ.