breaches of the peace, which are not triable by jury, and jurisdiction in graver cases to make a preliminary investigation and hold the offender to bail. In some states, they also have appellate jurisdiction over the justices of the peace.

The "police courts" found in some of the states are very similar to the municipal courts just mentioned, except that, as a general rule, they have no civil jurisdiction, being confined to the trial of petty criminal offenses and the preliminary inquiry into felonies and high misdemeanors.

The foregoing general view makes no mention of various courts which are peculiar to one or a few of the states. The state judiciary systems, as already observed, are marked by great diversities in the details. And the limits of the present work do not admit of a review of the powers of such courts as the "corporation courts," "hustings courts," "mayor's courts," "parish courts," "prerogative courts," "recorders' courts," and others, existing only in a few of the states.1

CONSTITUTIONAL COURTS.

127. Such courts as are provided for in the constitution of the state can neither be abolished nor changed by the legislature. And whatever jurisdiction is intrusted to them by the constitution is beyond the reach of the legislature; it can neither be added to, diminished, nor modified. But the manner of its exercise may be regulated by statute.

The judicial department being an independent and co-ordinate branch of the state government, the constitutions do not leave the judicial power to be prescribed and regulated at the discretion of the legislature, but declare, with a greater or less degree of minuteness, in what courts it shall be vested, and place their powers and functions, with more or less precision, beyond the reach of the legislative will. When the constitution of the state provides that the judicial power of the state shall be vested in certain enumerated courts, they are thereby constituted an independent branch of the government, and placed without the limits of legislative interfer

1 For more detailed information the reader may consult Stim. Am. St. Law, $$ 550-559.

ence or control. The legislature cannot lawfully abolish, either directly or indirectly, any constitutional court. The judiciary system, as defined in the constitution, can be changed only by a revision or amendment of the constitution. And when the organic law creates a court and prescribes its jurisdiction, its provisions are generally self-executing; that is, as the court does not owe its existence to the legislature, so also there is no necessity for the legislature to recognize it or invest it with jurisdiction in order to enable it to proceed to the exercise of its constitutional duties and powers.2 Nor can the jurisdiction of the court, as fixed by the constitution, be abridged by the legislative body. For instance, if the jurisdiction of the court is co-extensive with the state, it cannot be territorially restricted by statute.3 So also, it is not competent for the legislature to abolish or abridge the appellate jurisdiction given to any court by the constitution, either directly or by making the judgment of an inferior court final and conclusive. But it is no infringement of the constitutional powers of an appellate court to regulate or point out the mode in which its power shall be exercised, as, when by appeal and when by writ of error. And so the establishment, repeal, or alteration of the statute of limitations as to the time of appealing to the supreme court is within the lawful power of the legislature. And a statute allowing intermediate appeals to inferior courts is not unconstitutional, provided the right of an ultimate appeal to the court of last resort, as contemplated by the constitution, is not taken away. And if the legislature cannot abridge or restrict the jurisdiction conferred on any court by the constitution, so neither can it enlarge such jurisdiction, or grant any species of jurisdiction, where such enlargement or new grant would violate either the letter of the constitution or its plain design with reference to the particular court. For instance, where the intention of the funda mental law is that the supreme court shall possess and exercise an

2 State v. Gleason, 12 Fla. 190.

3 Com. v. Commissioners of Allegheny Co., 37 Pa. St. 237.

4 Anderson v. Berry, 15 N. J. Eq. 232; Ex parte Anthony, 5 Ark. 358. Haight v. Gay, 8 Cal. 297.

• Page v. Matthews, 40 Ala. 547.

7 Yalabusha County v. Carbry, 3 Smedes & M. 529.

appellate jurisdiction, and all original jurisdiction is denied to it, or denied except in a few specified cases, and vested in other courts equally created by the constitution, in such case it is not within the power of the legislature to confer original jurisdiction upon that court. And in general, where the jurisdiction of any particular court is limited by the fundamental law, it would be unconstitutional for the legislature to attempt to increase the boundaries of its jurisdiction. Thus if, under the constitution, justices of the peace have jurisdiction only of actions on contract, it is incompetent for the legislature to give them jurisdiction of actions for the invasion of the privileges of licensed ferries." On the same principle, the legislature cannot confer appellate jurisdiction on courts which are restricted by the constitution to the exercise of original jurisdiction only.10 Neither can the legislature confer upon one court the functions and powers which the constitution has conferred upon another.1

11

STATUTORY COURTS.

128. If the constitution empowers the legislature to establish inferior courts, it may create, abolish, or modify such courts at its own discretion, and adjust and control the limits of their jurisdiction, subject only to such limitations as may be found in the fundamental law.

The function of creating courts and investing them with jurisdiction is, generally speaking, constitutional rather than legisla tive. It is not within the general bounds of legislative power to erect tribunals of law. But the people, in adopting a constitution, may, and frequently do, leave it to the legislature to provide for the organization and jurisdiction of the inferior courts. But where the constitution declares that the judicial power shall be vested in certain courts which it names "and in such other courts as the legislature may from time to time establish," these words must

8 State v. Bank of East Tennessee, 5 Sneed (Tenn.) 573; Ward v. Thomas, 2 Cold. (Tenn.) 565; State v. Jones, 22 Ark. 331.

Gibson v. Emerson, 7 Ark. 172.

10 Deck's Estate v. Gherke, 6 Cal. 666. 11 Zander v. Coe, 5 Cal. 230.

be taken as pointing only to a partition of judicial powers. They will not authorize the legislature to abolish any of the constitu tional courts, or to divest them of their entire jurisdiction, or, in creating new courts, to invest them with jurisdiction exclusive of that of the constitutional courts, but the legislature may vest a portion of this jurisdiction or a concurrent jurisdiction, in courts from time to time established:12 And such a grant of power to the legislature is broad enough to authorize the bestowal of judicial powers and functions, for special purposes, upon boards or bodies whose ordinary duties are not properly judicial. Thus, in Indiana, it is held that the legislature may erect the board of county commissioners into a court which shall have authority to adjudicate upon claims against the county.13 And a general distribution, in the constitution, of the judicial power, not referring to courts-martial, would not be held to prohibit, by implication, the creation of such courts or the grant to them of power to punish by fine.14 A discretionary power bestowed by statute on a court may be taken away, in any particular case, by a special act of the legislature, as well as generally by a general act.15

JUDGES.

129. The constitutions make provision for the security and independence of the judges in the exercise of their judicial functions.

130. While a constitutional court cannot be abolished by the legislature, a judge of a statutory court may be legislated out of office by the abolition of the court.

In some few of the states, the judges of the courts are appointed by the governor; but in a majority, they are elected by the qualified voters. But the constitutions, in fixing their term of office, and in prescribing their compensation and declaring that it shall

12 Com. v. Green, 58 Pa. St. 226; Montross v. State, 61 Miss. 429; State v. Burton, 11 Wis. 51.

13 State v. Board of Com'rs of Washington Co., 101 Ind. 69. 14 People v. Daniell, 50 N. Y. 274; Alden v. Fitts, 25 Me. 488. 15 People v. Judge of Twelfth Dist., 17 Cal. 547.

not be increased or diminished during their continuance in office, secure their necessary independence, so far as concerns the interference or control of the legislative body.

It is a general rule of constitutional law, applicable to the judges of the courts as well as to other official persons, that when the constitution itself has created an office and fixed its term, and has also declared the grounds and mode for the removal of an incumbent of the office before the expiration of his term, the legislature has no power to remove or suspend the officer for any other reason or in any other mode. 16 As to whether a judge can be legislated out of his office by the abolition of the court to which he belongs, there has been some difference of opinion. But the weight of authority seems to teach that if the legislature has the power to abolish the court, it cannot be restrained from so doing by the consideration that a judge would thereby be deprived of his office in a mode not directly contemplated by the constitution. And where the judge has been elected by the legislature itself, the legislature may curtail the territory of his jurisdiction down to the constitutional minimum, although it thereby diminishes his compensation.17

17

JURISDICTION.

131. The judicial power of a state extends to all cases and controversies properly susceptible of judicial determination, except in so far as such cases or controversies have been withdrawn from the cognizance of the state courts by the federal constitution or acts of congress.

132. The jurisdiction of the state courts, in so far as it is fixed by their constitutions, is not subject to the regulation or control of the legislature.

133. It is not competent for the legislature to impose upon judicial officers duties which are not judicial in their

nature.

The judicial power of a state differs from that of the United States in this: that while the latter is limited to such subjects,

16 Lowe v. Com., Metc. (Ky.) 237; State v. Emerson, 39 Mo. 80. 17 Foster v. Jones, 79 Va. 642.