Rourke v. Holmes Street Railway Co.

166 S.W. 272, 257 Mo. 555, 1914 Mo. LEXIS 307

• Court: Supreme Court of Missouri
• Decided: April 13, 1914
• Status: Published

Opinions

OPINION.

BOND, J.

(after stating the facts as above).— The question necessarily arising upon the transfer of this case to this court by the Kansas City Court of Appeals, is whether the attempted amendment by the Legislature of 1911 of section 3937 of the Revised Statutes of 1909 is constitutional? In order that the exact relation to each other of the previous act and the proposed amendment may appear, we insert that act and the proposed amendment in full with the latter italicized.

“Section 3937. The various courts of appeals of Missouri shall have jurisdiction of appeals and writs of error in all cases where the amount in dispute, exclusive of costs, shall not exceed the sum of seventy-five hundred dollars. All cases now pending in the Supreme Court, which have not been submitted, and which by the provisions of this section come within the jurisdiction of said courts of appeals, shall be certified and transferred to the proper courts of appeals, to be heard and determined by them, provided that the Supreme Court shall retain and have full exclusive appellate jurisdiction in any case pending in which the Supreme Court has made any decision or ruling

It is conceded that this case involves no subject nor any class of cases reviewable by this court, unless appellate jurisdiction was vested in it by the terms of the italicized proviso attempted to be added to the above section of the statute by the Legislature of 1911. At the time of the judgment from which the present appeal was taken, the pecuniary limit of the jurisdiction of this court included all cases wherein the amount in dispute, exclusive of costs, exceeded the sum of $7500, which was then the maximum of the jurisdiction of the courts of appeals. [R. S. 1909, sec. 3937.] This appeal having been taken to the Kansas City Court of Appeals from judgment rendered within its territorial district, that court was vested with exclusive appellate jurisdiction of the case under the constitutional grant (Wilson v. Drainage Dist., 237 Mo. l. c. 45; Drainage & Levee Dist. v. Jamison, 176 Mo. 557), unless that power has been taken away by the act of the Legislature, passed after the lodgment of the appeal. [Laws 1911, p. 190.]

In order to determine the power of the Legislature to alter the respective jurisdictions of the Supreme Court and the Courts of Appeals, it is necessary to make a brief reference to the provisions of the Constitution creating the courts of appeals and providing for the distribution of the appellate jurisdiction between them and the Supreme Court. The Constitution of 1875 established the first court of appeals (St. Louis) and gave it territorial jurisdiction over that city and four adjoining counties, with a right to review by appeals and writs of error taken from all judgments rendered within that district and provided that such review should be final in all cases except the following; as to each of which an appeal or writ of error would lie from the decision of the St. Louis Court of Appeals to this court. The cases thus excepted were, to-wit: “1. All cases where the amount in dispute, exclusive of costs, exceeds the sum of two thousand five hundred dollars; (2) in all cases involving the construction of the Constitution of the United States and this State; (3) in all eases where the validity of a treaty or statute of or authority exercised under the United States is drawn in the question; (4) in cases involving the construction of the revenue laws of this State, or the title to any office under this State; (5) in case involving the title to real estate; (6) in cases where a county or other political subdivision of the State or any State officer is a party; (7) and in all cases of felony. [Constitution 1875, art. 6, sec. 12.]

While this plan sifted out all cases of which the St. Louis Court of Appeals had the power of final review, it left the remainder subject to be prolonged by the appeals to that court and afterwards to a final review in this court. To avoid this delay and to provide other courts of appeals with aggregate territorial jurisdiction coextensive with the State, and to relieve the crowded docket of this court, a constitutional amendment was submitted to the people and adopted in November, 1884. .The objects had in view by that amendment where carried out by the establishing of the Kansas City Court of Appeals, which was granted exclusive jurisdiction identical as to subjects and amounts with that given to the St. Louis Court of Appeals, and a division between them of the entire territory of the State.

The amendment also provided for the establishing of another court of appeals by the General Assembly and vested it with authority to make an allotment of territorial jurisdiction for such court by the changing of the limits of the territorial jurisdiction of the courts of appeals then established. And also gave the General Assembly power, to-wit, ‘ ‘ To increase or diminish the pecuniary limit of the jurisdiction of the courts of appeals; to provide for the transfer of cases from one court of appeals to another court of appeals; to provide for the transfer of causes from a court of appeals to the Supreme Court, and to provide for the hearing and determination of such cases'by the courts to which they may be transferred.” [Amendment of 1884, sec. 3.]

The amendment further provided, with reference to the subject-matters of appellate jurisdiction in the courts of appeals, that the provisions of the Constitution concerning “the powers, the jurisdiction and proceedings of the St. Louis Court of Appeals, . ... shall . . . apply to the Kansas City Court of Appeals and to such additional courts of appeals as may be by law created. ’ ’ [Amendment of 1884, sec. 4.] The amendment of 1884 then in express terms granted exclusive appellate jurisdiction of all other causes than those within the jurisdiction of the courts of appeals, to the Supreme Court, and provided for direct appeals and writs of error to that court. [Amendment of 1884,. sec. 5.] The effect of this constitutional provision was to give the Supreme Court exclusive and direct power of review of all classes of cases mentioned above, arising in any part of tbe State from wbicb an appeal might have been taken to it from tbe decision of tbe St. Louis Court of Appeals under section 12, article 6, of tbe Constitution of 1875. [Steffen v. The City of St. Louis, 135 Mo. 44; State ex rel. v. Smith, 131 Mo. 176; State ex rel. v. Nortoni, 201 Mo. 1.]

Tbe only power given by tbe amendment of 1884 to future legislatures to change or alter tbe express-allotment by tbe Constitution of tbe appellate jurisdiction between this court and tbe courts of appeals,, is contained in tbe following terms, “To increase or diminish the pecuniary limit of the jurisdiction of the courts of appealsThere is not another line or word or syllable in tbe amendment of 1884 wbicb gives any other authority to any legislature to alter, change or reclassify any of tbe subjects of appellate jurisdiction specified and granted to this court and to tbe three courts of appeals. In tbe performance of this single function, tbe Legislature is a constitutional agent with limited and defined authority. Within tbe exercise of tbe power given to it, its action has all tbe force of a constitutional grant, but anything done by it outside of that authority is void, and without any binding force on any one. What tbe Constitution designed was to give tbe Legislature power to change tbe boundary of jurisdiction between this court and courts-of appeals, so far as it was divided by tbe amount in dispute in any case, by sliding tbe scale up or down. For it was reasonably anticipated by tbe framers of tbe Constitution that tbe growth and development of tbe State would make it proper to enlarge tbe pecuniary boundary of tbe courts of appeals or to adjust tbe scale so that a proper proportion of jurisdiction dependent on amount should be vested in each of tbe two appellate systems.

Tbe framers of tbe Constitution recognized that tbe act permitted to be done by tbe Legislature would necessarily affect the right of review on the part of the Supreme Court, as well as the courts' of appeals, of all cases where the appellate jurisdiction was hinged solely on the question of amount in dispute, and they were willing to entrust to the Legislature the fixing of the specific sum which should divide the jurisdiction as to all cases dependent on it. But the provision of the Constitution went no further. It gave the Legislature no more power to subdivide or classify the body of litigation thus divided and to transfer such subdivisions from one court to another, than it gave to it the right to transfer to this court the particular causes of actions on bills and notes, on open accounts, for equitable relief, to establish trusts in personal property or for torts. All of which would embrace under their respective heads homogeneous elements and would afford a more natural classification than the artificial one attempted to be formed out of the heterogenous list of cases, wherein this court might have made some prior ruling or decision either by original writs or on appeals. The only constitutional way in which the Legislature can deal with any of these distinct and separable causes of action, is by doing the particular thing delegated to it, the doing of which, would necessarily, at one and the same time, affect all said classes. If any other view could be maintained then it must logically follow that subsequent legislatures at different times might insert various provisos in an existing statute fixing the pecuniary limit of jurisdiction to the effect that such statute should not apply to certain of the several classes above mentioned, if the excepted class involved a dispute, for examples: exceeding one hundred dollars in one case, five dollars in a second, one thousand dollars in a third, two hundred and fifty in a fourth or one dollar in actions of tort. But it -is not conceivable that the framers of the Constitution designed to put it in the power of succeeding legislatures to accomplish such absurd results by varying at tbeir caprice the pecuniary boundary between the jurisdiction of the courts ■of appeals and this court as to the class to which it should be applied. This will be evident if the matter is viewed from another standpoint. Suppose instead of inserting the proviso of 1911 in the valid act which theretofore bounded the jurisdiction of the courts of appeals (R. S. 1909, sec. 3937), the Legislature at that time had enacted an independent law embodying the very classification expressed by the proviso. Could there be two opinions as to the unconstitutionality of such an act? Would not its very terms disclose a classification of causes irrespective of amount which were bodily transferred from the jurisdiction of the courts of appeals to the jurisdiction of this court? Is it possible to point to any power given to the Legislature by any provision of the Constitution to enact such a law altering the previous apportionment of jurisdiction by that instrument? If not, then the act would be wholly void. But if the Legislature would have no power to alter the constitutional grant of the jurisdiction by such independent act, necessarily it would have no power to do the same thing under the guise of a proviso embracing the same classification of cases. What it could not do directly it could not do indirectly. The Constitution having acted in the matter of separating the jurisdiction of the systems of courts, the Legislature could not thereafter change such relations, except in the precise mode and for the precise purpose pointed out by the Constitution. The proposition is so grounded on elementary constitutional principles as to have the force of an axiom. [State v. St. L., Iron Mt. & S. Railroad, 253 Mo. 642, and cases cited; Redmond v. Railroad, 225 Mo. l. c. 731; Bd. of Comm. Tub. Hos. Dist. v. Peter, 253 Mo. 520.] The Constitution gave the Legislature no power whatever to redistribute the jurisdiction which it had conferred upon the two sets of courts by reclassifying or inventing new classifications which, would subtract from tbe jurisdiction of one and add to tbe jurisdiction of tbe other. All itpermittedthe Legislature to do was to vary the money measure of" the jurisdiction so as to meet changed conditions. In exercising that function, it was competent for the Legislature, as it did on two occasions, to raise the pecuniary limit, and it might hereafter lower that pecuniary limit, but having done the one or the other, its constitutional authority was functus officio. By giving the legislature this special and particular authority, the constitution withheld from it any further power to act in the matter and where, as in the case at bar, it attempted to act by making a new classification of subjects regardless of the amount in controversy, it necessarily ignored the very purpose for which it was given power to act at all and acted for another purpose (classification) which transcended the only authority which the Constitution gave it to interfere at all with its own previous action in the matter.

II.

But we are not left to the conclusion as to the limitation of the power given to the Legislature under the terms in question, dictated by an analysis of their import, by process of reason and by fundamental principles of constitutional construction. For this court in Banc has directly adjudged that the Legislature can enact no law touching the jurisdiction of the courts of appeals until it can point to a specific amendment in the Constitution; for the reason that the Constitution •has conferred that jurisdiction, and its grant cannot be modified or altered except it has given power so to do. [State ex rel. v. Nixon, 232 Mo. 98; State ex rel. v. Nixon, 232 Mo. 496.]

The question involved in these two cases, was the power of the Legislature, after it had allotted to the three courts of appeals their respective territorial jurisdiction to pass an act whereby a case which had arisen in the territory of one of the courts of appeals could be transferred for decision to another court of appeals. The Legislature assumed the power to enact such a law under the language of section 3 of the amendment of 1884. That section gave it power to transfer causes from one court of appeals to another, " ‘ and to provide for the hearing and determination of such cases by the courts to which they may he transferred.” Acting under that authority the Legislature sent to the Springfield Court of Appeals the case of Houts v. Jackson, 143 Mo. App. 584, which had been tried at St. Louis and appealed after judgment for $5038 to this court, and by this court transferred to the St. Louis Court of Appeals, for that pending its submission here, the Legislature had increased the pecuniary limit of the courts of appeals to $7500 by section 3937 of the revision of 1909 (the very act to which the proviso under review was added in 1911). [Wilson v. Drainage Dist., 237 Mo. l. c. 41; Drainage Dist. v. Jamison, 176 Mo. 557.] The St. Louis Court of Appeals transferred the case to the Springfield Court of Appeals in pursuance of an act of the Legislature of 1909 (Laws 1909, p. 396), purporting to authorize such transfer. A writ of prohibition was sued out against the St. Louis Court of Appeals on the ground that the act authorizing it to transfer the cause exceeded the limit of power given to the Legislature by the above quoted words in section 3 of the amendment of 1884. Said this court in Banc, in making that writ permanent: “When the Constitution speaks on a subject, to the extent that it disposes of the matter, it ends all legislation concerning it.” [State ex rel. v. Nixon, 232 Mo. l. c. 101.]

The court then recited the history of the creation of the three courts of appeals and the exclusive appellate jurisdiction granted to them by the constitutional amendment of 1884 and referred to the two acts of the Legislature (Laws 1901, p. 107; Laws 1909,. p. 393), which increased the pecuniary limit of the jurisdiction of said courts and pointed out the constitutional authority of these two acts expressed in section 3 of the amendment .of 1884. The opinion then took up the act in judgment and stated the argument in its support based on so much of the language of section 3 of the amendment of 1884 as referred to the transfer of causes from one court of appeals to another, and to the provision for their determination which is quoted above. To the point that those quoted words implied a power in the Legislature to confer jurisdiction by transferring a cause from the territory of one court of appeals to another, this court said: “But that is not the language of the Constitution, nor its meaning. The Constitution itself had already declared the jurisdiction of those courts, both as to- the amount in dispute and as to territory, and it expressly authorized the General Assembly to alter the limit as to the amount and to alter the limits of the districts, and that was the extent to which it authorized the General Assembly to go in changing the jurisdiction. ’r (Italics mine.) [State ex rel. v. Nixon, 232 Mo. l. c. 104; State ex rel. v. Nixon, 232 Mo. 496.]

These two decisions in Banc settled the principle that the power given to the Legislature by the terms of section 3 of the amendment of 1884 excluded the doing of any act by it which shall affect the jurisdiction conferred by the Constitution in any other way than the exact mode expressed by the words of that section. This principle of limitation was applied by this court in the above cases to an act of the Legislature which sent a case to one court of appeals which had arisen in the territory which the Legislature had allotted to another. But that principle necessarily applies with the same constitutional force to an act of the Legislature which attempts to alter the jurisdiction of a class of cases vested in the courts of appeals by an act of tbe Legislature fixing tbe pecuniary limit of jurisdiction, with wbicb it was held to apply when the Legislature undertook to transfer the causes in contravention of its local division of jurisdiction. 'And this conclusion is expressly ruled in the above quoted language of this court in Banc.

No valid reason can be given why the Legislature is restricted by the Constitution in one case and not in. another.. The courts of appeals got their appellate jurisdiction of subjects or classes of eases within certain pecuniary limits, just as they got the territorial jurisdiction by the act of the Legislature in pursuance of a specific constitutional authority. [Amendment 1884, sec. 3.] And if the Legislature, after having acted so as to define the jurisdiction of the courts of appeals locally, is without power thereafter to alter such jurisdiction, then the Legislature, after having defined the jurisdiction of the courts of appeals pecuniarily, is also without jurisdiction thereafter to pick out a class within that pecuniary limit, and transfer that class, regardless of the amount involved, to the Supreme Court. The'prohibition in each case is that of the Constitution, against any alteration of its action except for the very object and in the exact mode which the Constitution permits its own grant to be affected. To my mind this conclusion rests upon irrefragable reason and the accordant decisions of the Court in Banc, and upon elementary constitutional principles.

The peculiar class of cases which would fall within the purview of the proviso affords a powerful inference that it was one of those many instances where our statute books have been littered with legislation enacted at personal request or to embrace some pending suit. But whatever inspired the proviso in question, it was a clear violation of the power to act,. given to the Legislature by section 3 of the amendment of 1884. Wherefore, I see no escape from the conelusion that the sole power to review the appeal taken in this cause is constitutionally lodged in the Kansas City Court of Appeals, to which, after deciding the unconstitutionality of the amendatory proviso, the case should be sent for disposition on its merits.

III.

Neither is it possible to uphold the proviso under review as legitimate classification by the Legislature of subjects, the jurisdiction of which it might change from the courts of appeals to this court, by calling attention to the terms of the section 3937 of the revision of 1909 which required this court .to transfer to the courts of appeals all, eases pending here which had not been submitted, at the time the act went into effect, and urging that this court, by complying with those terms and similar ones in the previous act, has conceded the right of the Legislature to change the jurisdiction between this court and the courts of appeals by its own classification of subjects.

To this notion it only need be answered that it loses sight of the fact that that classification was made in pursuance of a direct and express constitutional authority. In other words, the Legislature put in its general act defining the pecuniary limit of jurisdiction no classification of its own, but only the very requirements which the Constitution itself had imposed on this court, and therefore, this court in recognizing its duty to send to the courts of appeals all cases pending here which had not been submitted at the time of the passage of the act under which they would fall into their jurisdiction, was only obeying the mandate of the Constitution, and was not recognizing any power of classification in the Legislature. This is apparent when it is observed that the terms of the act referring to cases not submitted (R. S. 1909, sec. 3937) were simply a rescript of the following constitutional provision: “Cases now pending in the Supreme Court transferred to the Kansas City Court of Appeals. All cases which may he pending in the Supreme Court at the time of the adoption of this amendment, which have not been submitted, and which by its terms would come within the territorial appellate jurisdiction of the Kansas City Court of Appeals, shall he certified and transferred to such court, to he heard and determined by it.” (Italics mine.) [Sec. 7, Amendment of 1884; Constitution of 1875, art. 6, sec. 191.]

Clearly this constitutional provision is of continuing force, and governs the disposition of cases hot submitted when subsequent changes were constitutionally made in the relative jurisdiction of the Supreme Court and the courts of appeals. Under the guidance of and to effectuate this constitutional regulation, the Legislature inserted in its general act altering the pecuniary limit of the jurisdiction of this court and the courts of appeals, the provision requiring the transfer of cases according to the standard fixed by the act. Hence, its observance by the court was only for the reason that the Constitution, not the Legislature, made it obligatory. And it has been decided by this court that the power of the Legislature to pass any act providing for transfers of cases between the courts of appeals and to the Supreme Court, is sustainable solely on the ground of a specific authority so to do, given by the Constitution. [In re Garesche, 85 Mo. 469; Affirmed, Schuster v. Weiss, 114 Mo. l. c. 172.]

If it could he held therefore (which we do not concede) that the Constitution designed to regulate the transfer of cases only to one court (the Kansas City Court of Appeals) and did not design that the same rule should govern transfers of cases similarly situated to the other courts of appeals, then under the explicit rulings of the two decisions last cited, the Legislature had no constitutional power to enact the provision in question as far as the St. Louis and Springfield Courts ■of Appeals are concerned, for they are not mentioned in the act. And even if this court had followed the act as to said courts, that would not have supplied the lack of constitutional power in the Legislature, and necessarily would not have shown that the Legislature was making a valid classification of subjects of appellate jurisdiction between this court and the •courts of appeals under any constitutional authority given to it.

It is clear that no conclusion can be drawn from the presence in the act of the language authorizing the transfer of cases “not submitted” at the time of the fixing of the pecuniary boundary of the jurisdiction of the respective courts, that the Legislature had any constitutional power to put in the same act (by the amendment of 1911), a clause divesting the courts •of appeals of their jurisdiction of any case wherein this court had, made a previous ruling or decision.

What the Constitution intended and expressly provided was, that the three courts of appeals should have the same jurisdiction as to subjects of review, exert the same judicial powers, entertain the same proceedings, and be governed by the same rules; and this purpose is expressly set forth in the words of the amendment of 1884. [Amendment 1884, sec. 4.]

But besides all this, there is not even an attempt at classification by the use of the words “not submitted.” All that was intended by them was to ftoo the time when the law dividing the jurisdictions should take effect. The purpose being to fix a time before the decision of the cases to be effected, and hence, the time adopted was a period when a decision had not been made.

The whole effort to build an argument of power to classify from the use of these terms, is based on two erroneous assumptions. First, the assumption of a power which did not exist; second, the assumption of a classification which was not made. From these incorrect premises no correct conclusion can be deduced of constitutional power in the Legislature to amend the act of 1909 as attempted by the proviso inserted in 1911.

IY.

It is hardly necessary to refer to the suggestion as to the “persuasiveness” of the ruling of the Kansas City Court of Appeals in sending this case here after the enactment of the proviso by the Legislature of 1911. The Kansas City Court of Appeals had no power to decide any case “involving the construction of the Constitution of this State.” The amendatory act of 1911 presented on its face that question. The Kansas City Court of Appeals therefore, with perfect propriety, transferred the case to this court to the end that the constitutionality of the act should be first considered by the only court permitted to solve that question under our judicial system. The Kansas City Court of Appeals withheld any expression of its own views as to the validity of the act, but read its terms of attempted classification of cases irrespective of the limit of its own jurisdiction and promptly transmitted the record to this court as the only authority which could decide the question presented by the terms of the act. The mere action of sending to this court a case falling within the letter of the new act, could not in the nature of the things afford any greater persuasive authority for a holding by us that the act was constitutional, than we could have from a mere reading of the act itself.

V.

It is finally suggested that the question of the constitutionality of the proviso was “settled” by the ruling of Curtis v. Sexton, 252 Mo. 221. A brief reference to that opinion will demonstrate that it made no ruling whatever on the ground of attack directed at the act of 1911 which is now called to the attention of this court. The point that the Legislature transcended the constitutional limit of its power to act only on the subjects or classes of the appellate jurisdiction of the courts of appeals so as ilto increase or diminish the amount” upon which their jurisdiction was predicated, by altering it with respect to the entire subject-matter of .that jurisdiction, was not raised nor called to the attention of the court nor passed upon in that case, nor even referred to in the remotest way by anything that was said in that opinion. This is proven by the following extract from that opinion:

“The constitutional objections urged are those relating to the passage of local laws, and laws touching upon ‘class legislation.’ No specifications are furnished us by counsel showing wherein a provision of this sort violates the law forbidding class legislation, nor do we know of any such reason. The law applies to all pending cases, both those which are here and those which shall hereafter be appealed to this court wherein this court shall prior to the passage of the act, have made some decision and ruling. We rule this point against defendant.” [Curtis v. Sexton, 252 Mo. l. c. 253.]

That case not only did not settle the point now under review, but it is not even persioasive authority, since it gives no expression whatever on the question which now has- arisen for judgment, but which was neither in judgment nor touched upon there. There is no exception to the doctrine established in this State and elsewhere, that where a prior decision does not rule upon or refer to a ground of attack made upon an act of the Legislature in a subsequent case, the former decision is without any authority whatever in the decision of the later case. [Koerner v. St. Louis Car Co., 209 Mo. l. c. 156; State ex rel. v. St. Louis, 241 Mo. l. c. 239.] But a careful analysis of the ruling in Curtis v. Sexton will disclose that what, in effect, was held there, to-wit, that the act of. 1911 constructed a class of cases, furnishes a conclusive reason why the act must fall under the present constitutional attack. This is so because the Legislature had no constitutional power to classify, its only authority being to change the pecuniary limit of jurisdiction. And it is wholly illogical to say, that the Legislature was acting in accordance with a power to change the amount in dispute when it left that matter entirely out of view and made the class of cases sought to he created, depend for their existence solely upon the factitious circumstance that a prior ruling or decision had been made in them at some earlier stage by this court. In other words the Legislature could not have acted in conformity with the Constitution while ignoring the only object for which it authorized the lawmakers to act. Hence it follows that its attempt to withdraw jurisdiction from the court of appeals of a class of cases was devoid of any constitutional authority and its act in so doing is patently void.

YI.

It is a matter of the greatest importance to the people of this State that the courts of appeals shall be allowed to exercise the jurisdiction expressly conferred on them by the Constitution as amended. This court has not an atom of power to withdraw any jurisdiction of cases granted exclusively to the courts of appeals by the Constitution. This court is itself a creature' of the Constitution and cannot without usurpation annul the very authority to which it owes its being It is* the pinnacle of the judicial system devised by the Constitution to administer the law, and to enforce its supremacy.

It has been shown that the lawmaking body attempted, by the proviso to a previous valid act, to create an unrelated and artificial class of cases which should be transferred without reference to any constitutional authority so to do, from the subject-matter of appellate jurisdiction of the courts of appeals.- This appears on the face of the act and by any possible construction which can be given to it. It is a self-evident proposition that the Legislature was powerless to do this, and that this court is equally powerless to validate its attempt so to do. The commands and limitations of the Constitution may be altered or amended by the people in the exercise of the powers reserved in that instrument, but until that is done, they are beyond the control of the courts or the. Legislature, for neither of them are framers of constitutions.

This court is content to move in the orbit prescribed for it by the instrument to which it owes its creation. If it leaves that course, the whole system of government is at onc,e deranged by the infraction of the laws upon which it is founded and by which it is regulated and controlled. That no other tribunal can coerce or restrain its action is the moral reason which makes self-restraint an imperative duty. Though possessed of unchecked power, this court will steadily pursue the paramount behests of right action, and thus refute detraction and silence “envious tongues” uttering the misjudgments of the judiciary, which distort the popular fancy of the hour.

We accordingly hold that the proviso attempted to be inserted by the Legislature in 1911 (Laws 1911, p. 190) is void, because it is beyond the scope of the power conferred upon the Legislature by the Constitution as amended in 1884. This resiilt does not affect the validity of the act of 19091 (R. S. 1909, sec. 3937) which established the present • criterion of jurisdiction of the courts of appeals in respect to the amount in dispute. For that or any similar future enactment is within the just authority given the Legislature under the present Constitution.

It is evident that the determination of the present appeal in the case at bar is vested in the Kansas City Court of Appeals and the cause is hereby transferred to that court.

Woodson, Graves and Walker, JJ.r concur; Lamm,, G. J., dissents in opinion filed in which Brown and Faris, JJ., join.