John Shepler v. William F. Dewey

Corwin, J.

This is a writ of error to the district court of Wood county.

The question presented is one of practice, which has been differently decided by the district courts of the state, and this case is brought here that a uniform rule may be established.

*At the March term, 1852, of the court of common pleas of Wood county, the defendant in error recovered a judgment against the plaintiff for the sum of one hundred and twelve dollars and fifty-six cents, and costs; upon which a writ of error was issued, upon the precipe of the plaintiff, on the 17th day of July, 1852, removing the cause to the district court; at the September term of which court, 1852, the judgment of the court of common pleas, was affirmed, with the statutory penalty and costs; to reverse which judgment of affirmance this writ is prosecuted.

I shall not stop to remark upon the fact that this plaintiff is seeking to reverse the decision of the court whose aid he had invoked, simply upon the ground that it had not jurisdiction to try the question which he had himself submitted to that court; but come at once to the question, whether, under the laws of Ohio, in force on the 17th of July, 1852, and which are still in force, a writ of error may issue in civil causes from the district court to the court of common pleas, as a matter of course: or whether, in all cases, it must issue only upon allowance of the district court, or one of the judges of the supreme court in vacation.

The fourth section of the act of February 19, 1852, 50 Ohio L. 67, “relating to the organization of courts of justice, and their powers and duties,” confers upon the supreme court, when in session, the power, “in addition to the original jurisdiction conferred, by section 2, art. 4, of the constitution, on good cause shown, to-issue writs of error, certiorari, supersedeas, ne exeat, and all other-writs not specially provided for by statute, which may be necessary to enforce the due administration of right and justice throughout the stateand either of the judges of the supreme court, in vacation, is authorized on good cause shown to grant writs of error, supersedeas, and certiorari, and also writs of habeas corpus. By the 13th section of the same act, the same power is conferred upon the district court, as such, but not upon its judges in vacation, except that the writ of habeas corpus is not therein specially mentioned.

*The first section of the “ act further prescribing the powers and duties of the courts of this state,” etc., passed April 30, 1852, provides:

“ That all process and remedies authorized by the laws of this state, when the present constitution took effect, may be had and restored to in the courts of the proper jurisdiction, under the present constitution; and all the laws regulating the practice of, and imposing duties upon, or granting powers to the supreme court, or any judge thereof, and the courts of common pleas, or any judge thereof, respectively, under the former constitution, except as to matters of probate jurisdiction, in force when the present constitution took effect, shall govern the practice of, and impose like duties upon the district courts and courts of common pleas and the judges thereof respectively created by the present constitution, so far as •such process, remedies and laws shall be applicable to said court respectively, and to the judges thereof, and not inconsistent with the laws passed since the present constitution took effect.” 50 Ohio U. 102.

The act of March 12, 1845, “to regulate the practice of the judicial courts,” did “ regulate the practice of the supreme court, under the former constitution,” and “ was in force when the present constitution took effect,” and must “ govern the practice of the district courts, created by the present constitution,” so far as the same shall be applicable “ and not inconsistent with the laws passed since the present constitution took effect.”

The 6th section of the act of March 12, 1845, authorizes the issuing of a writ of error from the supreme court to the court of common pleas as a matter of course; and it is not contended that that act has been expressly repealed, or that its remedies are inapplicable to the present judicial organization. But it is claimed that the general grant of jurisdiction in the first section of the act of April 30,1852, shall not be held to extend to remedies theretofore specially provided for; and that inasmuch as the act of Feb- i-uary 19, 1852, provides for the issuing of writs of error, upon «good cause shown, they can not be issued in any other manner. But from March 12,1845, until the present courts were organized, under a precisely similar state of law, a different construction and different practice prevailed. The supreme court and the judges thereof, respectively, under the old constitution, had the same power, upon good cause shown, to allow writs of error; and the existence of this power was never held to be inconsistent with the right of a suitor, in a civil cause, to his writ of error, as allowed by the act of 1845. The power conferred by the act of February 19, 1852, is indispensable ; for the rights conferred by the act of March 12, 1845, and continued by the act of April, 1852, extend only to civil causes; and, in the absence of authority to allow writs of error, upon good cause shown, no writ of error could be had in a criminal case. The supreme court, or the district court, when in session, and either of the judges of the supreme court, in vacation, have the undoubted power to allow a writ of error, upon good cause shown, in any case, criminal or civil; but this power does not abrogate the right of a suitor to a writ of error in any ■other mode which the law has provided or may provide.

But it is also claimed that this practice is “ inconsistent with the laws passed since the present constitution took effect; ” because the law “ regulating appeals to the district court,” provides heavier penalties for a vexatious appeal, than can by law be assessed in a proceeding in error, merely for delay. It is perfectly clear that a heavier penalty does attach in the one case than in the other; but the fact by no means creates such an absolute inconsistency as to effect an implied repeal of the law authorizing writs of error to issue as a matter of course. Repeals by implication are never favored, and never will be declared when the two laws may well stand together. And here, although the legislature have allowed appeals at law from the court of common pleas to the district court,- yet it may have been the policy of the legislature, and I think it a wise policy, to encourage another simpler, less expensive, and more expeditious «method of reviewing the decisions of the court of common pleas. By making the penalty less in a proceeding in error than in a general appeal of the whole ease, appeals are discouraged ; and my observation inclines me to the belief that the necessities of our political organization will compel the legislature to extend this policy still farther, if not entirely to repeal the law authorizing appeals upon questions of fact. But whatever modifications of the law our future experience may make necessary, it is. sufficient for the present question to declare, as the majority of the court are clearly of the opinion, that the sixth section of the act of March 12,1845, has never been expressly or impliedly repealed; that it is, by the act of April 30, 1852 (50 Ohio L. 102), made applicable- . to the courts organized under the present constitution; and that the remedy it affords is not inconsistent with any subsequent, legislation.

The judgment of the district court is therefore affirmed.

Bartlet, C. J.

I can not concur in the opinion of the majority of the court in this case, and deem it proper to state briefly the grounds of my dissent.

The present supreme court is a different and an entirely distin ct tribunalfrom the late supreme court in bank, under the old constitution, differing from it not in its organization merely, but also in its jurisdiction, both original and appellate. The 2d section of the 4th article of the constitution confers upon the present supreme-court, “ original jurisdiction in quo warranto, mandamus, habeas corpus, and procedendo, and such appellate jurisdiction as may be pro- ‘ vided by law.” The district court is also a new and distinct organization, differing from the late supreme court on the circuit, not merely in the mode in which it is constituted, but likewise in its-jurisdiction. The 6th section of the 4th article of the constitution provides, that “ the district court shall have like original jurisdiction! with the supreme court, and such appellate jurisdiction as may be provided by law.”

The writ of error falls within the appellate jurisdiction, and therefore had to be conferred by a law to be enacted after the constitution took effect.

*It can not be maintained that the 12th section of the schedule in the constitution confers this jurisdiction by providing: that,11 the district courts shall, in their respective counties, be the successors of the present supreme court, and all suits, etc., pending-in said supreme court in the several counties, shall be transferred to the respective district courts of such counties,” etc. The provisions of the schedule were, in their very nature, intended for mere temporary or limited purposes; and by a fair interpretation of this particular provision, the district court became the successor of the supreme court on the circuit, only with reference to the causes pending, judgments, records, etc. A different construction would lead to absurdity and contradiction. The whole context of an instrument must be looked to, in giving it an interpretation. If, by this provision in the schedule, the district courts succeeded to all the jurisdiction of the late supreme court on the circuit, it would be in conflict with the provision in the body of the constitution above mentioned, which fixed the original jurisdiction, confining it to four writs, and provided prospectively that the appellate jurisdiction should-be prescribed by law.

It is true that the laws relating to the jurisdiction of the courts, and regulating the process and remedies in the courts under the old constitution, which were in force when the new constitution took effect, and not contrary to its provisions, continued in full force so long as those courts continued to exist. Eut when those courts ceased to exist, the laws, which were in their terms made applicable to them, lost their legal vitality for want of the judicial organization for which they were enacted and to which they were adapted.

The general assembly, in the enactment of February 19,1852, relating to the organization of courts of justice and their powers and duties, sections 4 and 13, conferred the jurisdiction upon the-new courts to issue writs of error, but expressly provided that they should be issued “ on good cause shown.” And these provisions are not confined to writs of error in any particular class of cases, but in terms apply to *the issue of writs of error in all cases. So that the law contemplated by the new constitution, relating to the new courts, instead of authorizing writs of error as of course, expressly provided an allowance “ on good cause shown.” And by no correct principle of construction can it be maintained that this general authority for the issue of writs of error on an allowance is qualified and enlarged by the 18th section of the law, which provided that “All process and remedies authorized by the laws of this state, etc., when the present constitution took effect, may be had and resorted to, in the courts of the proper jurisdiction under the present constitution,” etc. A statute is to be construed with reference to the whole context of it, and the intention of the law-making power. If, under the provision in this 18th section, writs of error could have been issued, the authority would be qualified by the condition of an allowance “on good cause shown” prescribed in the preceding part of the same act. A different construction would lead to a repugnancy., at war with the evident intention of the legislature. A provision, in one part of the statute, conferring- general authority to issue all writs of error, whether returnable to the supreme court, or to the district court, upon an allowance on good cause shown, would be in plain conflict with a provision in another part of the same statute authorizing all writs of error from districts courts, upon judgments at law in the courts of common pleas, to issue as a matter of course, whether there existed good cause or not.

The general assembly, however, in the amendatory act of 30th April, 1852, repealed this 18th section, and at the same time re-enacted the same provision, with some-little change in other respects, adding a clause “ excepting all process, remedies and laws inconsistent with the laws passed since the present constitution took effect.” This exception, as it seems to me, removed all ground, for controversy, and- clearly left the general provision in the act of 19th February, authorizing writs of errors only on an allowance on good cause unqualified in every respect.

*The following, from Smith’s Commentaries on statutory construction, sec. 490, is in point:

“ In the interpretation and construction of a law, every part and the whole law is to be considered, and the sense gathered from the whole and each expression, and not so much the signification, which a particular word individually would admit of, as that which it ought to have from the context, spirit and purview of the law. It was a maxim of the Roman law: 1 Incivile est, nisi tota lege perspecta una aliqua partícula ejus proposita judiciari vel responderé.’ It is only in this way an interpretation can be made in such a manner as that all parts shall be made consonant with each other, so that what follows may agree with what precedes. This should always be done by interpretation, unless it evidently appears, that, by subsequent clauses, the framers intended to make some alteration in preceding •ones. So, too, two different statutes, enacted at different times, may have such a relation to each other, and stand so intimately connected .aS that the one may serve as a key to the true interpretation of the other; and upon this principle rests the doctrine of examining all the statutes in pari materia.’’

And the author adds: “ The reason of the statute—that is, the motives which led to the making of it, the object in contemplation, at the time the act was passed, is another criterion by which to .¡ascertain the true meaning of the act.”

The power to issue writs of error, conferred by the act for the organization of the courts under the former constitution, authorized it only upon an allowance on “ good cause shown.” And this regulation continued until the statute of March 12, 1845, prohibiting appeals to the supreme court. In this enactment the legislature substituted the writ of error as a matter of course for appeals which were prohibited. And in the statute of 19th February, 1852, above mentioned, the legislature provided for the restoration of the right of appeal from the judgment of the court of common pleas, and, at the same time expressly authorized writs of error generally, but only upon “ good cause shown.” The object and intention of the law-making power appear to me to be too apparent to admit of controversy.

There is yet another difficulty in finding authority for issuing writs of error as a matter of course, under the authority of the sweeping provision that “ all process and remedies authorized by the laws of this state, and the laws regulating the practice of courts, etc., when the present constitution took effect, shall be applicable to the courts under the present constitution.” This provision of the statute, if it has any *validity, both revives and amends sundry laws, and parts of laws, covering several hundred pages on the statute books, and relating to a variety of different subjects connected with the powers, duties, and practice of the several courts. The 16th section of the 2d article of the constitution contains a restriction upon the power of the general assembly, in the enactment of laws, to wit:

“No bill shall contain more than one subject, which shall be clearly expressed in its title; and no law shall be revived or amended, unless the new act contain the entire act revived, or the section or sections amended; and the section or sections so amended shall be repealed.”

When the courts, under the former constitution, ceased to exist, the laws regulating their powers and duties, and made specially applicable to them, lost their validity and became a dead letter upon the statute book. The object upon which they operated having become extinct, they became wholly inoperative. If new life was given to these laws by making them applicable to another and different judicial organization, they were revived without the new act containing the entire act or acts revived.

An amendatory law is one which makes additional provisions to, or some change in the original act. If these statutes were so changed as to acquire a new operation which did not before belong to them, they were amended without a compliance with the’constitution.

One of the chief objects of the new constitution was to impose some restraint upon hasty and inconsiderate legislation and the abuse of legislative power. So frequent and so inconsiderate have been the changes made in the laws of the state, that it has become a serious question whether the evils of legislation do not preponderate over its blessings. The framers of the new constitution have endeavored to impose some salutary checks upon this abuse of power. If these constitutional restraints are to be disregarded or frittered away by construction, the legislative branch of the government may lose the confidence of its most zealous advocates, as a safe depository of civil power.

*It is said that a compliance with this provision of the. constitution would, in this instance, have occasioned great and unnecessary inconvenience. I have yet to learn that the argumentum ab inconvenienti ought to prevail against the strict observance of the constitutional regulations or restraints upon legislative power.

Thurman, J.

I fully concur with the majority of the court in regarding as constitutional the eighteenth section of the act for the organization of the courts (50 Ohio L. 71), and the act of April 30,. 1852, idem 102, by which it was repealed and re-enacted with amendments. It is objected to these statutes that they are attempts to revive and amend the practice acts that were applicable only to the courts under the old constitution, and that, therefore, they conflict with art. 2, sec. 16 of the new constitution, which provides, thatt! no law shall be revived or amended, unless the new act contain the entire act revived, or the section or sections amended; and the section or sections so amended shall be repealed.”

As I have said, in Hubble v. Renick, ante, 176, I am strongly inclined to the opinion that the practice acts and various others, providing remedies and regulating judicial proceedings, in force when the present constitution took effect; are saved by it, and would, without the statutes in question, govern the existing courts in the exercise of their proper jurisdiction. It is true, the present courts are creations of the new constitution, and are, therefore, by whatever names called, distinct from the former courts. Laws, then, relating to the old courts would seem to have no application to the new, unless made to apply by the constitution or by legislation. Of course, some of the laws relative to the judiciary expired with the old system, being in their nature wholly inapplicable to the new courts. But the great body of the statutes, which might •be applied to the present courts without contravening the constitution, was so applied, as I think, by that instrument itself; not in ■express words, but by necessary ^implication. The constitution took effect September 1,1851; but, under its provisions, the old judiciary remained in power until the second Monday of February, 1852. Up to this time, therefore, the practice acts, etc., were clearly in force. Many suits and matters, however, were then pending and undisposed of. This had been foreseen, and provisions in the constitution directed them to be transferred to the new courts and proceeded in to final judgment. How could this be done if the laws under which they originated, and pursuant to which they had been conducted up to February 9,1852, then expired, and the legislature had no power to pass the eighteenth section aforesaid? It was surely never contemplated that a new statute book would be made between the first Monday of January, when the legislature was to meet, and the second Monday of February, when the new .Courts would come into power. Nor could it have been intended that parties to such litigation should be compelled to await legislation. Was it designed, for instance, that a plaintiff in attachment, whose suit was brought before February 9, should be unable to proceed a single step until a new attachment law should be enacted, and that no new writ should be issued before the passage of such an ■act ? And that all proceedings under the water-craft law, and in ■dower, partition, replevin, and the other statutory remedies, should ■be suspended, and no other suits brought until the general assembly should enact laws in detail upon these subjects ? Were the probate of wills, the granting of letters testamentary and of administration, the appointment of guardians, inquisitions of lunacy, and condemnations of property for the public use, all to await legislation ? Was no justice of the peace, elected under the new constitution, to have any power until an act defining his jurisdiction, and prescribing the mode of its exercise should be passed ? I see nothing in either the tenor or spirit of the instrument that requires such a decision. On the contrary, both seem to me to be opposed to it. In respect to suits pending in the court in bank, it is provided that they shall be transferred to the *new supreme court, “ and be proceeded in according to law.” It is not said, according to such laws as may hereafter be enacted; but simply “ according to law” —that is according to, the law for the time being, no matter when enacted. Schedule, sec. 11.

As to the causes to be transferred from the supreme court to the district courts, it is expressly provided that they shall “be pro- • ceeded in as though no change had been made in said supreme court.” Schedule, sec. 12.

Had no such change been made, it will not be denied that the statutes in question, enacted under the former constitution, would have governed the practice of the court and the rights of the parties. They would have applied to the court by its very name. If so, they, in like manner, govern the districts courts, though newly created and bearing a different name. In regard to the cases transferred from the old to the new courts of common pleas, it is provided that they shall be proceeded in as though they had been instituted in the latter courts. Schedule, sec. 13. This imports that if they had been so instituted, the proceedings would have been the same that had already taken place; or, in other words, that the law of the two courts is the same, and is to so continue until the legislature otherwise provide. The probate courts are to proceed in the business transferred to them “ according to law.” Schedule,, sec. 14. I have already remarked upon the meaning of this expression. No provision is madefor a transfer of business to justices of the peace; because the old justices are to continue in office until their terms expire, respectively (Schedule, sec. 7), and the law provides what may be done when a justice goes out of office leaving unfinished business. The omission was evidently designed and tends strongly to show the understanding of the framers of the constitution, that the then existing laws would continue in force and govern the new courts so far as might be consistent with that instrument.

But it may be said that, although this may be the case so far as respects suits, or other business, transferred from the ^former courts, yet those laws are defunct for every other purpose; and that, therefore, no new suits can be brought under, or be regulated by them. Where, I would ask, is the necessity for any such limited construction? The objection to applying them to the present courts is, that the only courts named in them have ceased to exist. But if this objection is valid at all, it extends to all cases, as well those transferred from the old courts as those originating in the new. And if it will not prevail as to the former, why should it as-to the latter? If those laws govern the existing courts, though not named in them, when acting upon one class of cases, why will they not do so in all eases? So far as they have been repealed by the legislature, without a saving clause, they may have no force in any case; but so far as they remain, why shall they not govern new, as well as old suits? Is it reasonable to suppose that the constiution is so defective as to preclude all statutory remedies until the enactment of new statutes; that it was designed that no statutory action should be brought, or will be proved, or letters testamentary granted, or administrator or guardian appointed, or inquisition of lunacy had, or property condemned for public use, or recognizancetaken, or indictment found, until the legislature should-pass laws iqpon these subjects? In short, were the framers of the constitution in drafting, and the people in adopting it, so blind as-to wipe out much the greater part of the statute book, when every dictate of reason prohibited their doing so ? I think not. It is not done expressly, or by implication, nor do I discover, any casus omissus.

I have pui’posely avoided mooting a question of no small difficulty, namely, whether the constitution does not effect something more than to transfer to the .district court the unfinished business of the old supreme court in the counties, and to the new coirrts of common pleas, and the probate courts, the undisposed of cases of the former common pleas. Possibly, when the question arises, it will be found that there is a transfer of jurisdiction, not limited to the cases transferred; and that these new courts, until otherwise provided by *law, took the entire jurisdiction of the old courts, so far as such jurisdiction would not conflict with the provisions of art. 4th of the constitution. It may be that both the language of the schedule and reason require the construction; and if so, there can be no doubt that the old statutes in question remain in force, so-far as they have not been altered or repealed by the legislature. But it is unnecessary now to decide this question. It is, undeniably, a very doubtful one, and ought not to be decided without full argument. Let it be granted, for present purposes, that no such extended jurisdiction is conferred by the constitution, and the case before us is not affected by the admission. For the courts now possess jurisdictions, in virtue of the constitution and the laws enacted under it, in the exei-cise of which they should be governed by former laws, to the extent I have endeavored to indicate. If the views 1 have expressed are correct, this necessarily results, whatever part of their jurisdiction is derived directly from the constitution, and whatever portion is conferred by the law.

It seems to me, thereforej that the eighteenth section of the act organizing the courts, and the first section of the act of April 30, 1852, are unnecessary; that the object intended by them is accomplished by the constitution itself, and that they were probably enacted merely out of abundant caution.

Be this, however, as it may, I am satisfied of their constitutionality. .The clause of the constitution quoted against them provides that “ no law shall be revived or amended, unless the new act contain the entire act revived, or the section or sections amended; and the section or sections, so amended, shall be repealed.”

But, first, they revive no law; for none of the laws to which they refer had either been repealed or become obsolete. I think it can not be gainsaid that the old laws remain in force at least so far as •the cases transferred from the old courts are concerned, except where they have been altered or repealed by the legislature. I am not aware that any body denies this. I think, as I have stated, that, subject to this *exeeption, they are in force for all purposes; but if I am wrong, and they apply only to the transferred cases, that is sufficient to show that they are yet in force. And if they are in force for any purpose, or to any extent, they have not been repealed nor are they obsolete. It follows that the constitutional provision in regard to reviving laws has no application. It is said, however, that the eighteenth section and act of’April 30, aforesaid, are attempts to amend them, by subjecting the present courts to their provisions; whereas, íd their original state, they related to the old courts alone. But, technically speaking, they are not amended. We would not say that the common law is altered by the creation of a court of common law jurisdiction. We would not call it an amendment of the act organizing the courts, if a new court should be erected in a county with the same powers as the common pleas. These are not what, in legislative parlance, are called amendments, nor do I think them within the. meaning of the above clause in the constitution. That clause does not refer, I imagine, to an act defining the general jurisdiction of a court. .If it does, and if the old laws were not saved by the constitution itself, it follows, as I have before said, that more than half the .statute book was wiped out: and the duty of re-creating it in five weeks, imposed upon the legislature. No such impossibility could have been intended. And it also follows that if the general assembly create a new court, it must enact in detail all the laws that prescribe its jurisdiction and mode of procedure. If it is to be governed by the code, the code must be repealed and re-enacted with amendments to include the new court. If it is to have juris.diction under the water-craft law, and in attachment, replevin, ■dower, partition, and the like, the various statutes on these subjects must, in like manner, be repealed and amended. Surely, no such thing as this could have been designed. And the language of the clause is not so stringent as to require it.

Butwhile I agree with the majority of the court upon this point, and am not aware that in anything I have thus far said, *1 •differ from them, I am yet unable to concur in their decision. For, in my judgment, it is inconsistent with the legislation of the present general assembly to hold that a writ of error is, in any case, a writ of course. I think that, in every case, it must be allowed; otherwise it can not be issued.

By the third section of the act of 1831 (Swan’s Stat. 222), power was given to the supreme court to issue writs of error “ on good ■cause shown.” It was in virtue of the power thus given that all .■such writs, whether in civil or criminal cases, were issued by that court; and, as good cause was required to be shown, it was obviously necessary, and was so uniformly held, that there must be an allowance. But, in 1845, the right, theretofore existing, to appeal an action at law to the supreme court, and thereby have a second trial of an issue of fact, was taken away; and, in lieu of it, the writ of error in civil causes was made a matter of course. (43 Ohio L. 80.) So stood the law when the present constitution took effect, and if, ■under its provisions contained in the schedule, the district courts took the same jurisdiction, until otherwise provided by law, that the old supreme court in the counties had possessed, so far as such jurisdiction was consistent with the fourth article of the constitution, it follows that a writ of error is yet a thing of course, unless .subsequent legislation has taken away the right and required it to be allowed. I think it demonstrable that it has been so taken .away, if it ever existed under the present constitution, not by the express words of any act, but by necessary implication. If, on the-other hand, the district courts had no appellate jurisdiction until it was conferred upon them by law, it results that, as a writ of error is a mode of appeal, it can only be issued pursuant to some statute of the present general assembly; and if no such statute makes it. a matter of course, it must be allowed. This is not denied, and therefore the act of April 30, 1852, is relied upon, as giving the-writ without an allowance. The first section of that act provides: “ That all process and remedies authorized by the laws of this, state, when the present constitution took effect, may be had and resorted to in the courts of the proper jurisdiction under the present, constitution; and all the laws *regulating the practice of, and imposing duties on or granting powers to the supreme court, or any judge thereof, and the courts of common pleas, or any judge thereof, respectively, under the former constitution, except as to matters of probate jurisdiction, in force when the present constitution took effect, shall govern the practice of and impose-like duties upon the districts courts and courts of common pleasj and the judges thereof, respectively, created by the present constitution, so far as such process, remedies, and laws shall be applicable to said courts respectively, and to the judges thereof, and not inconsistent with the laws passed since the present constitution took effect.”

It is evident that this statute is amply sufficient to authorize a writ of error in a civil cause, as a matter of course, unless its being1 so issued is inconsistent with some law or laws previously enacted, under the present constitution. If there is such inconsistency, then, by the express words of the statute, the remedy is withheld. I maintain that it is inconsistent, first, with the act for the organization of the courts, passed February 19, 1852, and, secondly, with the acts regulating appeals to the district courts, passed March 23r 1852. By the 13th section of the former act, the general appellate jurisdiction of the district courts is conferred; and among the powers given is the “power, on good cause shown, to issue writs of error.” If this is the only grant of power to issue the writ, it is conceded that it requires an allowance, for the language is the same as that of the act of 1831, under which an allowance was always deemed necessary. But the eighteenth section of the act is very similar to-the section above quoted from the act of April 30. The only differences are, first, that the latter section supplies certain supposed deficiencies of the former, by granting to single judges certain- powers, that were thought not to have been conferred by the former;, and, secondly, it expressly limits the powers and remedies granted, by providing that they must not be inconsistent with previous legislation under the present constitution. As, then, the eighteenth section, if it stood alone, would give a writ of error in a civil case, without an allowance, it is contended that the power to issue writs, upon good cause shown, conferred by the thirteenth section, was meant for criminal cases only. I can not think so. The thirteenth section was designed, it seems to me, to provide appellate jurisdiction, and the eighteenth section, to regulate its exercise. I do not say that this is all that the latter effected, but it appears to -me to have been its main object; and I would therefore construe it as limited by the thirteenth, where they conflict. It is a well settled rule of construction, that general words in a statute will be restricted where special provisions in the same act seem to require it. Jurisdiction in all cases in error was meant to be conferred by the thirteenth section ; and its language should, therefore, govern and limit the general terms of the eighteenth. If so, eveiy writ of error required an allowance under the act organizing the courts.

Let us now turn to the acts regulating appeals. If a party would appeal under it, he must, at the judgment term, enter notice of his intention upon the record of the court; and, -within thirty days from the term, give bond with one or more sufficient sureties. The penalty of the bond must be double the amount of the judgment where that is for the payment of money only; but may be in a much greater sum if the judgment is for nominal damages and costs, or for costs only; for, in the latter cases, the court fixes the penalty. If the judgment was for the payment of money only, and the appellate court render substantially the same judgment, and is-satisfied that the appeal was vexatious, and for the purpose of delay merely, a penalty of ten per cent, upon the amount of the judgment below shall be adjudged against the appellant; but if the judgment-below was for nominal damages and costs, or for costs only, and substantially the same judgment is rendered in the appellate court and the court shall not be satisfied that there was reasonable and probable ground for the appeal, “ there shall be adjudged to the appellee, or party affected by the appeal, damages in such specific sum as may be deemed reasonable, not exceeding two hundred dollars.”

*Such are the provisions of the statute, wisely designed to guard the rights of the parties, to discourage useless litigation, and to protect creditors and courts against frivolous and vexatious appeals.

But these are plainly idle provisions, in a multitude of eases, if a party can have a writ of error as a matter of course. No man, ■seeking delay merely, will put himself to the trouble of entering notice of appeal and giving bond within thirty days, if, at any time within five years, when menaced with an execution, he can supersede it by a writ of error, issued upon his own ipse dixit. No such man, against whom nominal damages and costs, or costs only, have been adjudged, will give a bond in a penalty fixed by the court, when a writ of error bond in double-the amount of the judgment may suffice; nor will he run the risk of paying two hundred dollars damages upon a vexatious appeal, when but five per cent, penalty can be awarded upon a writ of eiTor. Nor will any judgment debtor, merely seeking delay, appeal his cause and pay ten per cent, damages when he can take it up on error and pay but five. Now, ought we to believe that, after providing so carefully, by their act of March 23, against frivolous appeals and vexatious litigation, the legislature turned about on April 30th, and substantially undid all their work ? And this, too, when no possible reason for undoing it could have existed? It has never been our policy to allow •an appeal and a writ of error of course. It was only when the former was taken away in 1845 that the latter was given. The former has -been restored, and there was no longer any necessity for the latter. I can not think that the legislature meant to give both, and I find nothingin the statute relied on that requires us to defeat their intent. On the contrary, believing that the writ, unless allowed, is inconsistent with the terms of the act organizing the courts, and manifestly derogatory to the spirit and intent of the act regulating appeals, I hold it to be clearly negatived by the act ■of April 30. I must, therefore, with great respect for the better judgment of the majority of the court, dissent from their decision.

Judgment of district court affirmed.