The Quarterly of the Texas State Historical Association, Volume 2, July 1898 - April, 1899 Page: 140
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140 Texas Historical Association Quarterly.
in its opinion on the question, but the majority, Hemphill, C. J.,
and Lipscomb, A. J., sus'bained the point, Wheeler, A. J., dissenting.
The opinion of the court was delivered by Judge Lipscomb. After
stating the case, he says:
The importance of the question is sensibly felt and fully and
frankly acknowledged; and it is a matter -of serious regret that it
should be suddenly sprung upon the court without the benefit of
having it discussed at the 'bar. It is now nearly four years since the
Legislature, at its first session, proceeded to organize Justices'
Courts and define their jurisdiction, 'and, among other things, gave
the right of appeal, as a matter of course, from their decisions to
the Distridt Courts. 'The same Legislature, at the same session,
passed an act organizing the District Courts, and 'another regulating
judicial proceedings in the District Oourts. In the last, the man-
ner in which appeals from justices 'of the peace 'are to be 'tried is de-
fined and expressly provided for. In all the intervening time since
those acts were passed they have been acted on and judicially recog-
nized as valid without having ever before been questioned. If, how-
ever, they are repugnant to the constitution and could not give jur-
isdiction, neither the lapse of time nor the practice 'of the courts
can vindicate the exercise of sudch jurisdiction.
Justices of the peace and other inferior tribunals are recognized
by the Constitution; the extent of their jurisdiction, however, is left
wholly to the Legislature. But the District Court and the Supreme
Court, both as to their institution and jurisdiction, are essentially
the creatures of the ,Constitution. On those courts the Legislature
can neither confer or take away jurisdiction. If the jurisdiction
given by the Constitution cannot be exercised because the mode has
not been expressly provided for in the fundamental law of their cre-
ation, it would be competent for the Legislature to regulate the
manner in which it should be exercised. But if the mode had been
expressed contemporaneously, and by the same authority that cre-
ated the jurisdiction, it would not be competent for the Legislature
to direct a different mode. ,The Supreme Court is exclusively a
court of appellate jurisdiction. 'The Constitution has conferred on
it no original jurisdiction, nor can the Legislature confer any such,
because it has been created by the Constitution an appellate tribu-
nal only. The District Court is a court of original jurisdiction, and
this original jurisdiction is not derived from nor dependent on the
Legislature. All that can be done by the Legislature is to regulate
the manner in which its jurisdiction shall be exercised. If the Con-
stitution has not given it appellate powers it is not competent for
the Legislature to do so. There is a very obvious distinction, to my
mind, between controlling an inferior jurisdiction and the exercise
of an appellate power: the former can be exerted to prevent action;
the latter requires the act to be done before it can be appealed from.
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Texas State Historical Association. The Quarterly of the Texas State Historical Association, Volume 2, July 1898 - April, 1899, periodical, 1898/1899; Austin, Texas. (https://texashistory.unt.edu/ark:/67531/metapth101011/m1/144/: accessed April 23, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting Texas State Historical Association.