Ex parte Louisville & Nashville R. R.

ANDERSON, J.

Section 140 of the Constitution of 1901 says: “Except in cases othenvise directed in this Constitution, the Supreme Court shall have appellate jurisdiction only, Avhich shall be coextensive with the state, under such restrictions and regulations, not repugnant to this Constitution, as may from time to time be prescribed by Irav, except <where jurisdiction over appeals is vested in some inferior court, and made final therein; provided that the Supreme Court shall have poAver to issue Avrits of injunction, habeas corpus, quo Avarranto and such remedial and original writs as may be necessary to give it a general superintendence and control of inferior jurisdictions.” (Italics supplied.) The Constitution authorizes the creation of an inferior appellate court Avith final jurisdiction, and, Avhen said court is given final jurisdiction, this court is shorn of appellate jurisdiction, but the jurisdiction so made is subject to the superintendence and control of the Supreme Court by the express term s of the Con *634 stitution. The Legislature did not intend to establish an appellate court with co-ordinate jurisdiction and powers with the Supreme Court, and could not have done so, under the Constitution, had it so intended. “It is not in the power of the Legislature to make the Supreme Court inferior in "any respect to any other tribunal, but it remains, secure from legislative attack, the highest judicial power distributed by the Constitution. There must be in every state a court capable of exercising ultimate judicial power. * * * In this state '* * that is the Supreme Court. If it were otherwise, there would be no organ of government capable of authoritatively settling judicial questions; and there must be such an organ there can be no doubt, for the judicial department is an independent one, and the element of sovereignty delegated to that department must, as in the case of the executive and legislative, reside, in its last and highest form, in one tribunal, one officer, or body of officers. While we are clear that no statute can deprive the Supreme Court of its rank as the highest and ultimate repository of judicial power, we are equally clear that appellate jurisdiction of an inferior grade may be conferred upon other appellate tribunals. The Legislature cannot, under the guise of confeiTing inferior appellate jurisdiction upon other tribunals, grant them unlimited appellate jurisdiction; but it may grant such tribunals appellate jurisdiction by limiting it to classes of cases not of the highest grade and restricting its authority to appeals from recoveries of a limited nature.” — Branson v. Studebaker, 133 Ind. 147, 33 N. E. 98.

Not only does the Constitution reserve unto this court the poAver and authority to superintend and control the Court of Appeals, but the act creating the Court of Appeals (Gen. Acts 1911, p. 100, § 10) recognizes *635 the power of this court to control the proceedings and decisions of said Court of Appeals. It says: “The decisions of the Supreme Court shall govern the holdings and the decisions of the Court of Appeals, and the decisions and proceedings of such Court of Appeals shall be subject to the general superintendence and control of the Supreme Court as provided by section 140 of the Constitution of the state.” The powers of this court to superintend and control the Court of Appeals should be exercised sparingly and with gréat caution, and so as not to hamper said court in the legitimate discharge of its duties and functions, or so as to render it-a burden instead of a relief to this court. It was not intended that the Court of Appeals should be made merely a temporary stopping place for cases from the trial courts to this court, but that its decisions should be final and not interfered with by this court when acting within the confines of its jurisdiction and not in conflict ‘with the former adjudications of this court, or except perhaps in other extreme instances not necessary to now mention, but when the interference by this court is essential to preserve a uniformity of jurisprudence. — People v. Court of Appeals of Colorado, 27 Colo. 405, 61 Pac. 592, 51 L. R. A. 105; Ingersoll v. Minge, 50 La. Ann. 748, 23 South. 889. It is true the Louisiana Constitution gave the Supreme Court the power to have the cases decided by the Court of Appeals sent up by certiorari for review, yet the court held that -it was largely discretionary as to what matters would be reviewed, and that the right would be exercised only in special or extreme cases, whose peculiar circumstances justify a resort to it, stating: “Care being always taken against its abuse, to the impairment of the dignity and power and usefulness of the courts of appeal, and protracting litigation and deferring the final enforcement *636 of just rights.” It is true our Constitution is not as specific as the Louisiana Constitution, but it gives this court the right to control and superintend all inferior jurisdictions by the process there mentioned or “such other remedial and original writs.” It is sufficient to say that this court will exercise its powers cautiously and sparingly and only in extreme cases, not necessary to enumerate, and when not covered by the following instances. We will, however, invariably and unhesitatingly, by certiorari or other writs, superintend and control the Court of Appeals so as to compel action within its jurisdiction and prevent action beyond its jurisdiction, as well as to the extent of preserving uniformity and harmony between its decisions and those previously laid down by this court. As to other instances when this court will interfere, Ave need not noAV decide, but they must be extreme, and an interference by this court must be resorted to Avith care and caution.

This court has previously construed the meaning of the Avords “superintendence and control” as used in former Constitutions, and Ave must assume that, Avhen they were brought forAyard into section 140 of the present Constitution, they Avere used and employed subject to their well-known interpretation. In the case of Ex parte Croom & May, 19 Ala. 566, it was said: “It is the duty of this court, in order to enable it to carry out the powers with Avhich the Constitution invests it, on exercising ‘a. general superintendence of inferior jurisdictions/ to adopt such course of proceedings as Avill make its control complete. — Ex parte Chaney, 8 Ala. 424.” In the case of Ex parte Candee, 48 Ala. 412, the court quotes approvingly from the case of Ex parte Croom & May, supra, and says: “Under this section of the Constitution, the Legislature may impose such restrictions and regulations, not repugnant to the Con *637 stitution, upon the appellate jurisdiction of this court, hut it has no power to limit or prescribe the mode and manner in which it must exercise its power to issue the writs therein named, and such other remedial and original writs as may be necessary to give it a general superintendence and control of inferior jurisdictions. If they could, the power thus conferred upon this court by the Constitution might be so crippled and embarrassed as to render it worthless for the great and salutary purpose contemplated by the Constitution.”

It must be observed that section 140 of the present Constitution does not in and of itself vest the appellate court with final jurisdiction, but simply authorizes the Legislature to establish an inferior court of final appellate jurisdiction, but which .said final jurisdiction must of necessity be subject to the general control and superintendence of the Supreme Court. The case of People v. Richmond, 16 Colo. 285, 26 Pac. 929, is not opposed to the present holding as it was discussing a Constitution not identical with ours, and was considering the constitutionality vel non of the act establishing the appellate court, and the rig'ht or authority of the Supreme Court to superintend and control said court was not directly involved. Moreover, the Colorado court did not regard it as confining the Supreme Court to the power only of keeping the appellate court within its jurisdiction, for in the later case — People ex rel. Green v. Court of Appeals, 27 Colo. 405, 61 Pac. 592, 51 L. R. A. 105 — the court stated: “Without attempting to specify the reasons that may be sufficient to justify us in exercising the power in other cases, we are of the opinion that it may be resorted to in the following instances: First, when the Court of Appeals is without jurisdiction to revieAV thé judgment in question; second, Avhen in a clear case it refuses to be guided or *638 controlled by tlie law as laid down in the prior decisions of this court. In this event, it would become our imperative duty to resort to it, in order to enforce uniformity of decision in thd appellate courts of the state.”

The petitioner in the case at bar seeks a certiorari upon the sole ground that the decision of the Court of Appeals is contrary to and in conflict with existing decisions of this court, and, if the allegations are true, we are of the opinion that certiorari is the proper and appropriate remedy to review the decision of said Court of Appeals and to correct the same so as to preserve uniformity of legal decisions. — Miller v. Jones, 80 Ala. 89; Camden v. Bloch, 65 Ala. 236; McAllilley v. Horton, 75 Ala. 491; McCulley v. Cunningham, 96 Ala. 583, 11 South. 694. Indeed, opposing counsel does not question the right of this court to control the decisions of the Court of Appeals, but concedes the correctness of the present holding as to the right to issue the writ of certiorari, if the allegations of the petition are true, but insists that the petitioner is not entitled to relief, for the reason that the decision complained of is sound, and should not be disturbed by this court.

Bills of lading are both receipts and contracts to carry. So far as they acknowledge the delivery and acceptance of the goods, they are mere receipts. As to the rest, they are contracts, and are binding as such on the parties to them and the terms thereof cannot be varied by parol.

A bill of lading issued by the carrier upon receipt of the shipment and accepted by the shipper or his agent becomes the sole repository of the contract, and any transactionns or agreements leading up to it cannot avail to alter or vary the terms thereof. — L. & N. R. R. Co. v. Fulgham, 91 Ala. 555, 8 South. 803; Tallassee Co. v. Western Ry. Co., 117 Ala. 520, 23 South. 139, 67 *639 Am. St. Rep. 179; Hutchinson, on Carriers, § 167; Elliott on Railroads, §§ 1415-1424. It is true the bill of lading is issued by the carrier, and is merely signed by the agent alone, but in the absence of fraud, if it is accepted by the shipper or his agent, it becomes binding on him as he is assumed to have read it, or, if he does not read it, it is his own fault, and, if he cannot read, he should ask that it be read to him. — Western Ry. v. Harwell, 91 Ala. 340, 8 South. 649; Jones v. Cincinnati R. R. Co., 89 Ala. 376, 8 South. 61; A. G. S. R. R. Co. v. Little, 71 Ala. 611; Steele v. Townsend, 37 Ala. 247, 79 Am. Dec. 49.

There is a well-known exception, however, to'the general rule that the bill of lading after acceptance becomes a special contract and binding on both parties, as recognized by the text-writers and in the decisions of the courts. “Where, however, goods are received and are actually shipped under a parol contract, the subsequent receipt of the bill of lading does not preclude the shipper from showing the terms of the parol contract, unless it appears that between the shipper and the carrier the established custom has been for the former to receive bills of lading constituting the contract after shipment.” This exception has been recognized by our court in the case of L. & N. R. R. Co. v. Meyer, 78 Ala. 597, wherein the court held that the shipper was not bound by the recitals in a bill of lading, which he did not read, and which was delivered to him a day after the delivery of the goods, and after the payment of the freight. It was said, however, in the opinion: “If contemporaneously with the delivery of the goods to the railroad he had received the bill of lading containing such stipulation, he would be conclusively presumed to have read it, and to have acquiesced in it. — Goetter v. Pickett, 61 Ala. 387; Dawson v. Bur *640 rus, 73 Ala. 111. And this would have been no hardship, for he would then have it in his power to reject the terms. Failing to read the contract he was accepting might be fairly interpreted as an expression of full confidence and an agreement to accept the terms they would offer. That is not this case.” We may add that it Avas not the case as then considered, but the facts there hypothesized are rather analogous to the case uoav before us and the case of Jones v. Cincinnati R. R. Co., supra, Avherein said Meyer Case, supra, Avas referred to as standing upon its own peculiar principles, “and is distinguishable from this.” The bill of lading in the case at bar, being issued contemporaneous with the delivery of the cotton and accepted by the plaintiff’s agent, Avhether he read it or not, became the sole repository of the contract of shipment, and either embraced, canceled, or modified all previous agreements or' negotiations anterior to same. The Court of Appeals erred in holding that the telegraph communications and negotiations constituted the real contract between the parties, instead of the bill of lading, and the said ruling Avas in conflict Avitli some of the Alabama cases, supra.

The decision of the Court of Appeals seems to lmve been largely influenced by the case of' Northern Pac. R. P. v. American Trading Co., 195 U. S. 439, 25 Sup. Ct. 84, 49 L. Ed. 269. This case, however, is distinguishable from the case at bar, as the bill of lading there issued Avas subsequent to the receipt of the shipment, and Avas issued after the lead had been shipped from Newark, and had departed for its destination, and there Avas, of course, no acceptance, express or implied, of the bill of lading as the contract of carriage. This fact is stressed by the court as the pivotal point against an implied acceptance of the bill of lading as a contract and as a change of the previous agreement. Says *641 the court: “At the time when the hill of lading Avas issued, the lead had been shipped at NeAvark, and had departed for its destination. It was impossible for the- trading company to recall it. * * * Where the acceptance of the bill of lading, under these circumstances, is sought to be made an equivalent to an. assent to the change of contract, it is proper to look at these facts in order to determine what weight should be given such acceptance. At the time it was received the lead Avas out of the possession of the trading company, on its way West.” This case is somewhat analogous to the Meyer Case, supra, and which was distin guished from the case of Jones v. Cincinnati R. R., supra, and falls. Avithin the influence of the exceptions as set out in section 1423, Elliott on Railroads. Hutchinson on Carriers, § 172. Tt is true the opinion in the case of Northern Pac. R. R. v. American Trading Co., supra, mentions the fact that there was no neAV consideration for a change in the contract, but this was not decisive of the case. It Avas arguendo and gratuitous. In this jurisdiction a neAV consideration Avas not essential to the validity of the last contract changing or modifying the former one, if said last- contract Avas accepted.— 2 Mayfield’s Dig. p. 798, § 692, and cases there cited.

In the case at bar the bill of lading was issued contemporaneous with the shipment, was received by the plaintiff’s agent, and, Avliether read by him or not, his retention of same and failure to note the changes or modifications of the previous agreement in time to reclaim or recall the cotton, Avliile within his power to do so, Avas an implied acceptance of the bill of lading, and which thereby became the sole repository of the contract. This rule may sometimes prove harsh, but any other one, or a relaxation of the present one, may lead to confusion as Avell as weaken the salutary doctrine of *642 confining parties to the last solemn written contract as the sole exponent of the agreements and negotiations anterior thereto. Better that an individual shall suffer loss than to modify a well-established rule by declaring a new one, the evil consequences of which cannot be foreseen.

As to what the plaintiff’s rights are under the bill of lading, or whether or not he was entitled to recover under this contract, is a question with which we are not concerned, and which must be considered by the Court of Appeals. It is sufficient to say that said court erred in not holding that the bill of lading was the sole repository of the contract of shipment, and its decision must be reversed on this point, and the cause is remanded to said Court of Appeals for further consideration.

The writ of certiorari is awarded and the judgment of the Court of Appeals is reversed, and the cause is remanded.

. Reversed and remanded.

Simpson, McClellan, 'Mayfield, and Somerville, JJ., concur. Dowdell, C. J., and Sayre, J., concur, except as to the power of this court to review, and therefore dissent on this point.