by courts over persons, natural or artificial, not found within the state, must be confined to the cases and be exercised in the precise way indicated by statute.' The jurisdiction and authority in such cases, like all jurisdiction and authority derived from and dependent upon statute, must be taken and accepted with all the limitations and restrictions the act creating it may impose. These restrictions and limitations the courts are bound to observe; they cannot be dispensed with, however much they may appear to embarrass or however unnecessary they may seem to be in the administration of justice in particular cases. The statute is in derogation of the common law, is an essential departure from the form and modes a court ordinarily pursues, and must be strictly construed.

3

$395. Jurisdiction of courts.- Jurisdiction cannot be created nor taken away by implication, except where the implication is necessary from the language and purpose of the statute. As in the usual distribution of the fundamental powers of the government to separate departments - legislative, executive and judicial- the grant to each is exclusive, so in the distribution of the judicial power of the state to certain named courts the grant is exclusive as to the courts mentioned and as to the powers apportioned to each. Where

1 Hartford Fire Ins. Co. v. Owen, 30 Mich. 441; Jordan v. Giblin, 12 Cal. 100; Ricketson v. Richardson, 26 id. 149; McMinn v. Whelan, 27 id. 300; Gray v. Larrimore, 2 Abb. (U. S.) 542; Sayre v. Elyton Land Co. 73 Ala. 85, 98, 99; Brown v. Tucker, 7 Colo. 30; S. C. 1 West Coast Rep. 489; Pollard v. Wegener, 13 Wis. 569; Stewart v. Stringer, 41 Mo. 400; Scorpion S. M. Co. v. Marsano, 10 Nev. 370; Fontaine v. Houston, 58 Ind. 316; Bradley v. Jamison, 46 Iowa, 68.

2 Sayre v. Elyton Land Co., supra. 3 Keitler v. State, 4 Greene (Iowa), 291; School Inspectors v. People, 20 Ill. 525; Pringle v. Carter, 1 Hill (S. C.), 53; Thompson v. Cox, 8 Jones, (N. C.) L. 311; Ryan v. Commonwealth, 80 Va. 385; Beebe v. Scheidt, 13 Ohio St. 406. See Caulfield v. Ste

vens, 28 Cal. 118; Mecham v. McKay, 37 Cal. 154.

4 Cooley, Const. Lim. 106, 107; Sill v. Village of Corning, 15 N. Y. 297; Kilbourn v. Thompson, 103 U. S. 168; People v. Draper, 15 N. Y. 532, 543, 544.

5 Greenough v. Greenough, 11 Pa. St. 489; State v. Maynard, 14 Ill. 419; Smith v. Odell, 1 Pin. (Wis.) 449; Chandler v. Nash, 5 Mich. 409; Gough v. Dorsey, 27 Wis. 119; Alexander v. Bennett, 60 N. Y. 204; Hughes v. Felton, 11 Colo. 489. See Home Ins. Co. v. Northwestern Packet Co. 32 Iowa, 223.

6 Van Slyke v. Trempealeau, etc. Ins. Co. 39 Wis. 390; Byrd v. Brown, 5 Ark. 709; Gough v. Dorsey, supra; Given v. Simpson, 5 Me. 303. See People v. Daniell, 50 N. Y. 274.

common-law and chancery jurisdiction is conferred on certain courts, and provision is made in the same act for a probate court, the latter will not receive that jurisdiction, but only such as is implied in its name according to the antecedent and contemporary judicial history of the subjects cognizable by courts under that and similar designations.1

§ 396. When jurisdiction is once granted it will not be deemed taken away by a similar jurisdiction being given to another tribunal. In Commonwealth v. Hudson the question was whether a grant of a certain jurisdiction to justices of the peace affected that previously existing in the court of common pleas over the same subject. Shaw, C. J., said: "Before this statute the court of common pleas had jurisdiction over this subject-matter. Is that jurisdiction taken away? It is no answer to say that another tribunal has jurisdiction; for that is very common. It is in such case concurrent jurisdiction,

whether so called in the statute or not.

3

There must

be words of limitation, to take it away, either by using the word 'exclusive,' or by repealing the former act giving jurisdiction, by which it may appear that the legislature meant, not only to confer jurisdiction on justices of the peace, but to take away the other jurisdiction." Only express words, or what is equivalent, can take away the jurisdiction of the superior courts. This principle applies not only to a court's original, but to its appellate, jurisdiction, and its customary modes of exercising them. In Hartley v. Hooker Lord Mansfield said: "If a new offense is created by statute, and a special juris

1 Ferris v. Higley, 20 Wall. 375; Robinson v. Fair, 128 U. S. 53; Zander v. Coe, 5 Cal. 230; Appeal of Houghton, 42 id. 35; Matter of Will of Powen, 34 id. 682, 689; Rosenberg v. Frank, 58 id. 387, 402.

211 Gray, 64.

3 Tackett v. Volger, 85 Mo. 480; Dick's Appeal, 106 Pa. St. 589; Fidelity Trust Co. v. Gill Car Co. 25 Fed. Rep. 737; Barnawell v. Threadgill, 5 Ired. Eq. 88; Berkowitz v. Lester, 121 Ill. 999; Taylor v. Williams, 78 Va. 422; Hurth v. Bower, 30 Hun, 151; Jenkins v. Crevier, 50 N. J. L

351; In re Creighton, 12 Neb. 280; Catlin v. Wheeler, 49 Wis. 507.

4 Rex v. Abbot, 2 Doug. 553, note; Cates v. Knight, 3 T. R. 442; Shipman v. Henbest, 4 id. 109; Albon v. Pyke, 4 M. & Gr. 424; Balfour v. Malcolm, 8 Cl. & Fin. 500; Jacobs v. Brett, L. R. 20 Eq. 6; Rex v. Mayor of London, 9 B. & C. at p. 27; In re Twenty-eighth St. 102 Pa. St. 140; Crisp v. Bunbury, 8 Bing. 394; Reeves v. White, 17 Q. B. 995; Richards v. Dyke, 3 Q. B. 256; Timms v. Williams, id. 413.

52 Cowp. 523.

diction out of the course of the common law is prescribed, it must be followed. If not strictly pursued, all is a nullity, and coram non judice; and objections may be taken in any stage of the cause. In such case there is no occasion to oust the common-law courts, because not being an offense at common law, and punishable only sub modo, in the particular manner prescribed, they never could have jurisdiction. But where a new offense is created, and directed to be tried by an inferior court, established according to the course of the common law, such inferior court tries the offense as a commonlaw court, subject to be removed by writs of error, habeas corpus, certiorari, and to all the consequences of common-law proceedings. In that case this court cannot be ousted of its jurisdiction without express negative words." It may change the venue. It may summon or complete a jury when the statutory process fails.?

§ 397. The jurisdiction granted by the constitution cannot be abridged or infringed by the legislature, territorially nor as to subject-matter. If it is defined in that instrument the legislature can neither add to nor diminish it; neither can it invest a court whose original jurisdiction is therein defined with additional jurisdiction of that nature, nor deprive it of any part of its appellate jurisdiction so conferred. The essential qualities of a constitutional court are indestructible and unalterable by the legislature, though it may regulate the man

6

1 Wilberf. on St. 44; Southampton Bridge Co. v. Local Board of Southampton, 8 E. & B. at p. 804.

14 Mich. 334; Callanan v. Judd, 23 Wis. 343; Heath v. Kent Circuit Judge, 37 Mich. 372; Averill v. Perrott,

2 Clawson v. United States, 114 74 Mich. 296; S. C. 41 N. W. Rep. 929. U. S. 477.

3 Dillard v. Noel, 2 Ark. 449; Commonwealth v. Commissioners, etc. 37 Pa. St. 237; Meyer v. Kalkmann, 6 Cal. 582; Landers v. Staten Island R. R. Co. 14 Abb. Pr. (N. S.) 346; Connors v. Gorey, 32 Wis. 518.

4 Hicks v. Bell, 3 Cal. 219; Parsons v. Tuolumne Co. W. Co. 5 id. 43; State v. Mace, 5 Md. 337; Chandler v. Nash, 5 Mich. 409; Waldby v. Callendar, 8 id. 430; State v. Northern, etc. R'y Co. 18 Md. 193; Jones v. Smith,

See State v. Jones, 22 Ark. 331. Where an act gave exclusive jurisdiction of all misdemeanors to the county court of Knox county, it was held not to repeal an existing statutory provision authorizing the circuit court to punish when the defendant was acquitted of a felonious charge and convicted of a misdemeanor. Carter v. State, 6 Cold. 537.

5 Vail v. Dinning, 44 Mo. 210.

6 Harris v. Vanderveer, 21 N. J. Eq.

424.

ner in which it shall be put in action;' as by prescribing when appellate jurisdiction shall be exercised on appeal and when on writ of error. When exclusive, revising or appellate jurisdiction is given by the constitution to the supreme court of a state, a statute cannot authorize a trial court to revise its own judgments at a term subsequent to that at which they were rendered. In other words, the legislature cannot give appellate jurisdiction to any other court.

§ 398. Statutory rights.- Such rights depend on the statutes creating them, and these are construed strictly.' This principle is illustrated by the cases brought to enforce the statutory right in favor of the widow or next of kin to recover damages resulting from the death of a person caused by negligence. Statutes made for the accommodation of particular citizens or corporations ought not to be construed to affect the rights or privileges of others unless such construction results from express words or from necessary implication. But every part of a statute must have a reasonable effect. Statutes authorizing persons to prosecute in forma pauperis should be construed strictly as against the applicant. A statute gave a right to detain trespassing animals until seventy-five cents per day should be paid for their keeping, when they had trespassed upon the inclosure of a party by breaking through a lawful fence; this right being statutory was held stricti juris; the injured party could avail himself of it only on the precise statutory condition that the animals had broken through such a fence." An act authorizing gratuitous credits to be made on a debt owing to the state must be restricted to its obvious and plain intent and be construed most favorably, in case of doubt, for the government.10 Hornbuckle v. Toombs, 18 Wall. Dyson v. Sheley, 11 id. 527; Walker 648. See Ex parte Candee, 48 Ala. v. Chicago, 56 Ill. 277; Itawamba v. 386. Candler, 62 Miss. 193. 6 Ante, § 371.

2 Haight v. Gay, 8 Cal. 297.
3 Byrd v. Brown, 5 Ark. 709.

4 Caulfield v. Hudson, 3 Cal. 389; People v. Peralta, id. 379; Deck v. Gherke, 6 id. 666.

5 Pell v. Ulmar, 18 N. Y. 139; Van Valkenburgh v. Torrey, 7 Cow. 252; Hollister v. Hollister Bank, 2 Keyes, 245; Beecher v. Baldy, 7 Mich. 488;

7 Coolidge v. Williams, 4 Mass. 140, 145; Rothgerber v. Dupuy, 64 Ill. 452 ; Scaggs v. Baltimore, etc. R. R. Co. 10 Md. 268.

8 Moore v. Cooley, 2 Hill, 412.
9 Dent v. Ross, 52 Miss. 188.
10 Green's Estate, 4 Md. Ch. 349.

The mechanics' lien law confers special privileges and rights upon one class of people not enjoyed by others; therefore courts in construing such statutes confine them to their express letter, and require that the case shall be brought clearly within them before relief will be granted. Such laws are not extended by liberal construction to embrace cases not within their language. A statute which gives a judgment creditor a right to have a sheriff who is delinquent in returning an execution amerced for his use, on motion, in the amount of the debt, damage and costs, must be strictly construed. He who would avail himself of such a summary remedy must bring himself within both the letter and spirit of the law. And where such a statute provides that if he is thus required to pay a judgment it shall vest in him and execution may issue for his use, he must bring himself strictly within the terms of the act by payment of the judgment.' A statute authorizing the destruction of property to prevent the spread of fire provided a remedy for compensation to the It was held that the remedy could only be asserted in the manner defined therein. So where a remedy is given in the charter of a company to the land-owner for getting compensation for land taken for the use of the corporation under its charter, he must pursue this remedy, as that given thereby is exclusive of all others."

owner.

Roberts v. Fowler, 3 E. D. Smith, 632; Rothgerber v. Dupuy, 64 Ill. 452; Chapin v. Persse & Brooks Paper Works, 30 Conn. 461, 474; Womelsdorf v. Heifner, 104 Pa. St. 1; Scaife v. Stovall, 67 Ala. 237; Wagar v. Briscoe, 38 Mich. 587. Statutes which give a lien for services upon logs and timber are construed liberally in the interest of labor. Jacubeck v. Hewitt, 61 Wis. 96; Kollock v. Parcher, 25 id. 372; Hogan v. Cushing, 49 id. 169. See, as to the rule of construction applied to statutes giving a remedy for enforcing mechanics' liens, Rude v. Mitchell, 97 Mo. 365, criticised in 24 Am. L. Rev. 857; Thomas

v. Huesman, 10 Ohio St. 152; Keemer

v. Herr, 98 Pa. St. 6; Manly v. Downing, 15 Neb. 637; Johnson v. Stout, 42 Minn. 514.

2 Moore v. McClief, 16 Ohio St. 51, 54; Duncan v. Drakeley, 10 Ohio, 47; Bank of Gallipolis v. Domigan, 12 Ohio, 220; Webb v. Anspach, 3 Ohio St. 522; Conkling v. Parker, 10 id. 28: Langdon v. Summers, id. 79; Dibrell v. Dandridge, 51 Miss. 55.

3 Staple v. Fox, 45 Miss. 667.

4 Keller v. Corpus Christi, 50 Tex. 614.

5 Railroad v. McKaskill, 94 N. C. 746; McIntire v. Western N. C. R. R. Co. 67 N. C. 278; Johnston v. Rankin, 70 N. C. 550.