JUDGES: McKinstry, J. Mr. Chief Justice Wallace did not express an opinion.
OPINION
McKINSTRY, Judge
Neither the act " to create the City Criminal Court," nor any other act of the Legislature to which we have been referred, supplies in terms a particular mode of taking an appeal from that Court to the County Court. (Acts 1875-6, p. 829.)
The point has been made by counsel for petitioner: " The omission of the Legislature to provide the machinery for taking appeals in these cases (misdemeanors) is fatal to so much of the act creating the City Criminal Court as attempts to give jurisdiction to try them."
Prior to the amendments of 1862, the Constitution read: " The Supreme Court, and each of the Justices * * * shall have power to issue writs of habeas corpus. They shall also have power to issue all other writs and process necessary to the exercise of their appellate jurisdiction ." (Art. 6, sec. 4.) Sec. 1 of the sixth article of the Constitution declares that the judicial power shall be vested in certain Courts, (there enumerated) " and in such Recorders' and other inferior Courts as the Legislature may establish in any incorporated city or town." And the eighth section of the same article gives " appellate jurisdiction" to the County Court " in all cases arising in courts held by Justices of the Peace and Recorders, and in such inferior courts as may be established in pursuance of section one of this article."
By the eighty-fifth section of the Code of Civil Procedure, the Legislature has expressly authorized the County Court, if that Court did not previously possess the capacity, " to issue all writs necessary to the exercise of its powers."
Whether, in the absence of a statute purporting to grant the power, a Court on which the Constitution has conferred certain jurisdiction would have the power by rule to establish the manner in which an individual or the people could set in motion machinery for bringing within its judicial cognizance the person of a defendant and an appropriate subject-matter, and of prosecuting a proper plaint to judgment, is a question which need not now be considered. It has never been doubted that the Legislature may authorize a Court (if, indeed, such power is not inherent in every Court of Record) to establish a practice, or rules for the assertion and prosecution of demands on behalf of the public or an individual which may come within its jurisdiction. The clause of the eighty-fifth section of the Code of Civil Procedure above quoted adds nothing to the jurisdiction conferred on the County Court, but provides for a means of employing a portion of that jurisdiction. As the Legislature was authorized to declare the power in the County Court to issue all writs necessary to its jurisdiction, and has so declared, that Court possesses the power to the same extent as if in terms it were conferred by the Constitution itself.
On reading the eighth section of the sixth article of the Constitution in connection with the clause of the Code of Civil Procedure, the similarity of the phraseology to that employed in the fourth section of the same article of the Constitution, defining the jurisdiction and powers of the Supreme Court, (as the same stood prior to the amendments of 1862) is at once apparent.
And under the provision of the Constitution last referred to it has been repeatedly held that, in the absence of statutory machinery for appeal, a case may be brought to this Court by writ of error. (Middleton v. Gould , 5 Cal. 190; Adams v. Town, 3 Ibid. 247; S. P. & N. R. R. Co. v. Hanlon, 24 Ibid. 334.)
The Constitution of Alabama gave to the Supreme Court of that State appellate jurisdiction in criminal cases, with power to issue such remedial writs as might be necessary to the employment of such jurisdiction. It was held in Lynes v. The State , 5 Ala. 236--the Legislature having neglected to prescribe regulations by which the constitutional jurisdiction was to be exercised--that the record and judgment in a criminal case could be moved from the inferior Court by writ of error .
The writ of error, under our law, is a writ ex debito justitice, wherever, by reason of error, a judgment of a Court of Record ought not to stand, and an appeal is not provided by statute. We are convinced that under the Constitution and Code it may issue from the County Court to the City Criminal Court.
It is urged, however, that the last is not a Court of Record, because, although it has a Clerk and record, it has no seal. But this suggests too narrow a definition of the words " Courts of Record" as these words are employed in modern days, and too broad a definition, perhaps, as they were formerly used.
In England--and in some of the States--every Court which had jurisdiction to fine and imprison was a Court of Record, and the very erection of a new jurisdiction, with power of fine and imprisonment, made " instantly a Court of Record." (3 Blacks. Com. 24-5.) The City Criminal Court has power to fine and imprison, and is, therefore, plainly a Court of Record within the older definition.
In Thayer v. Commonwealth, the writ issued to a Justice of the Peace, and it was intimated by Shaw, C.J., (12 Metc. 11) that it is, perhaps, impossible to decide as an abstract question whether a statutory Court--with jurisdiction in part special, and in part common law--is a Court of Record according to any ancient and established definition of those terms. The definition there given, and which has been approved by standard authorities, is " a judicial tribunal having attributes and exercising functions independently of the person of the magistrate designated generally to hold it, and proceeding according to the course of the common law ."
The foregoing implies a written record, but not a seal. On the other hand, the fact that a Court has a seal, or even that a permanent record is kept of its proceedings, does not of itself, [ILLEGIBLE WORD] the modern law, stamp its character as a Court of Record. (Bouvier, " Court of Record." ) The City Criminal Court, with its Clerk and Bailiff, and where the proceedings are on indictment and by trial by jury, is a Court of Record .
Even if we entertained doubt as to whether the writ of error is a proper mode of taking the judgment of the City Criminal Court to the County Court, we should be inclined to the opinion that--under the power conferred on the latter Court by the Code--it would be authorized, on application of the defendant, to frame and issue an appropriate writ for the purpose of bringing up the alleged errors committed by the inferior Court.
The petitioner must be remanded to custody, and it is so ordered.