¶1(dissenting):
¶2For the reasons stated herein, we should dismiss this appeal because we are without jurisdiction to entertain it. I therefore dissent from the granting of a new trial and from Part I of the majority’s opinion, and express no opinion on the subjects treated in Part II.
¶3A circuit court jury convicted defendant of distributing pornographic material, U.C.A., 1953, § 76-10-1204, and he appealed to the district court. After that court affirmed his conviction, he took this further appeal to this Court. At the request of the Court, the parties have briefed the question of this Court’s jurisdiction in such cases. I conclude that the statute purporting to grant this Court jurisdiction over the appeal of circuit court “cases involving a constitutional issue,” U.C.A., 1953, § 78-3-5, that have already been reviewed on appeal in the district courts is unconstitutional under Article VIII, § 9 of the Utah Constitution, which limits our jurisdiction over appeals from inferior courts to “cases involving the validity or constitutionality of a statute.” This appeal should be dismissed because this ease admittedly does not involve the validity or constitutionality of a statute.
¶4It is astonishing that a jurisdictional question as basic as the one involved in this case was not settled definitively long ago. In fact, as is evident from the cases and statutes discussed in this and the majority opinion, there are cases on both sides of this question, contradictory reasoning in the opinions, and statutes in apparent conflict with the reasoning in some of the cases. What can be said without fear of contradiction is that most of the cases deciding the issue for or against jurisdiction do so either without recognizing the question as a serious legal issue or without explicit reasoning to disclose the basis of its resolution. In this circumstance, when the precedents are in hopeless conflict, it is appropriate to return to first principles to settle the issue. I therefore begin with the language and intent of the constitutional provision, in the context in which it was adopted.
¶5*452When our Constitution became effective in 1896, there were no city courts or municipal courts. The only courts in the Utah Territory or in the new state were the Supreme Court, the district court, and the justices of the peace. The Constitution had specific provisions governing the jurisdiction and interrelationship of these courts and others that might be created under the constitutional authorization of “such other courts inferior to the Supreme Court as may be established by law.” Article VIII, § 1. Thus, the Supreme Court had original jurisdiction to issue prescribed writs, and in other cases “appellate jurisdiction only .... ” Article VIII, § 4. See Holden v. NL Industries, Inc., Utah, 629 P.2d 428 (1981): The district court had original jurisdiction in all matters, civil and criminal, and “appellate jurisdiction from all inferior courts and tribunals, and a supervisory control of the same.” Article VIII, § 7. The jurisdiction of justices of the peace was “as now provided by law, but the Legislature may restrict the same.” Article VIII, § 8.
¶6The constitutional provisions on appeal bring us directly to the subject at issue in this case. The first sentence of Article VIII, § 9 provides that “[fjrom all final judgments of the district courts, there shall be a right of appeal to the Supreme Court.” Succeeding sentences define the scope of that appeal.
¶7The last sentence of Article VIII, § 9 concerns appeals from inferior courts, referring specifically to the only inferior court in existence at that time: justices of the peace. The first clause grants a constitutional right to appeal from the judgment of the inferior court:
Appeals shall also lie from the final judgment of justices of the peace in civil and criminal cases to the District Courts on both questions of law and fact, with such limitations and restrictions as shall be provided by law ....
¶8The second clause makes the district court’s judgment on an appeal from such a court final, with one stated exception:
[A]nd the decisions of the District Courts on such appeals shall be final, except in cases involving the validity or constitutionality of a statute.
¶9The purpose of the finality provision in Article VIII, § 9 was to limit the Supreme Court’s jurisdiction on appeal to those significant cases involving the constitutionality of statutes, and to protect the Supreme Court from the consumption of time involved in having to entertain other appeals from inferior courts whose errors had already been subject to correction in the district court. This clearly appears from Eureka City v. Wilson, 15 Utah 53, 58-59, 48 P. 41, 43 (1897), where, in dismissing an appeal in a criminal case that originated in a justice’s court, this Court explained:
Under the territorial form of government, appeals were allowed from all final decisions of the district courts to the supreme court, and questions of both law and fact were reviewed; and whether a case was originally brought before a justice of the peace, or in the district court, was immaterial. 1 Comp.Laws Utah, p. 57. This practice made it possible to appeal any case, no matter how insignificant the amount of the judgment, or how totally without merit the appeal or the cause of the appellant. It had a tendency to encourage profitless litigation, and consume the time of the appellate court without just cause. Such practice was in vogue when the constitution was framed, and we must assume that the framers of that instrument were familiar with current history, and that they had knowledge of the practice and its effect. When, therefore, contrary to the former practice, the framers of the constitution provided that “the decision of the district courts” on appeals from judgments of justices of the peace “shall be final, ex-' cept in cases involving the validity or constitutionality of a statute,” their evident object and intention were to obviate the evil to which the practice then existing was subject, and yet provide a way by which statutory and constitutional questions which might arise in such cases could be reviewed by the appellate court. [Emphasis added.]
¶10*453The foregoing explanation, which dates from the year the Constitution became effective and which has been quoted approvingly in succeeding cases,
¶11The proper interpretation of the finality provision in the second clause of the last sentence of § 9 is also strongly suggested by the interpretation of the comparable provisions granting the right to appeal (first sentence and first clause of last sentence). In light of the entire context of the constitutional judicial structure summarized above, including the evident intent to guarantee all litigants the right to appeal to the next higher court, could the Legislature use its constitutional power to create an additional court of original jurisdiction inferior to the Supreme Court but call it something other than “district court” and thereby avoid the constitutional right of appeal guaranteed from that court to the Supreme Court? I think not. Similarly, could the Legislature use its constitutional power to restrict the jurisdiction of the justices’ courts (Art. VIII, § 8) and then create another court inferior to the district court but call it something other than “justice of the peace” and thereby avoid the constitutional right of appeal that the last sentence of Article VIII, § 9 guarantees from a justice court to the district court? I think not.
¶12For this purpose, “justices of the peace” as used in the first clause of the last sentence of § 9 must be equivalent to the “inferior courts and tribunals” to which § 7 refers in granting appellate jurisdiction to the district court. Thus, to implement the “appellate jurisdiction” § 7 grants the district court over “all inferior courts and tribunals,” § 9’s guarantee of the right to appeal should be read to reach “all inferior courts and tribunals,” not just the “justices of the peace” specifically mentioned in that section. Section 9 mentions the only inferi- or court in existence at the time the Constitution was adopted, but its reference was illustrative, not exhaustive.
¶13Under the foregoing interpretation of the right to appeal, the finality provision in the second clause of the last sentence of Article VIII, § 9 fulfills the limiting purpose explained in the Eureka Citycase: subject only to the stated exception, “the decision of the District Courts on such appeals [i.e., from inferior courts] shall be final.”
¶14The actions of this Court in criminal cases, like the case now before the Court, have been consistent with the foregoing interpretation of Article VIII, § 9. Where a criminal case not involving the constitutionality of a statute or ordinance began in a court inferior to the district court and was appealed to the district court, this Court has routinely dismissed the further appeal to this Court on the basis of constitutional lack of jurisdiction or has otherwise held that this Court was without constitutional jurisdiction on appeal. Cited in the footnotes are examples of such dismissals of cases that began in justices’ courts,
¶15*454These dismissals do not mean that this Court is entirely without jurisdiction in cases that began in the inferior courts. In the exercise of our original jurisdiction in such eases, we have held that certiorari lies to correct a district court that exceeds its jurisdiction,
¶16At the same time, it must be conceded that there is also a line of authorities, beginning as early as Salt Lake City v. Lee, 49 Utah 197, 161 P. 926 (1916), that dismisses appeals of criminal cases commenced in the inferior courts on the stated ground that the appeal was impermissible under a statute rather than the constitutional provision, thus implying that this Court’s jurisdiction could be enlarged by statute.
¶17Since the conflicts of authority treated here are principally attributable to the provisions of statutes regulating appeals from inferior courts other than justices’ courts, a brief examination of those statutes is in order.
¶18There were no other inferior courts until 1901. In that year, the Legislature established municipal courts in cities of 15,000 to 40,000, and city courts in cities of the first class (30,000 or more). 1901 Utah Laws, chs. 109 and 112. Municipal courts had essentially the same jurisdiction as justices of the peace, their judges were expressly stated to be ex officio justices of the peace, and appeals from their judgments were pursuant to the same procedure prescribed for justices of the peace. In contrast, the city courts had a specific grant of jurisdiction (considerably beyond that granted to justices of the peace), and their judges (who had to be lawyers) were not ex officio justices of the peace. More importantly, for present purposes, their judgments could be appealed to the district courts under the same procedures as appeals from justices of the peace, but the statute added a special provision permitting civil appeals to be pursued to the Supreme Court where the judgment (soon amended to read “amount in controversy”) exceeded $100. 1907 Utah Laws § 686x17.
¶19In 1919, the municipal courts and justices of the peace were merged into the city courts in cities over 7,500, and the city court judges were expressly denominated ex offi-cio justices of the peace. 1919 Utah Laws, ch. 34. The special appeal provision was continued, e.g., U.C.A., 1953, § 78 — 4-17, and persisted in substance until the city court legislation was repealed by the Circuit Court Act in 1977. 1977 Utah Laws, ch. 77 (codified at U.C.A., 1953, §§ 78-4-1, et seq.).
¶20Some criminal appeals were dismissed under the special appeal legislation, as in Salt Lake City v. Lee, discussed earlier, and a handful of civil appeals of cases begun in the city courts where the amount in controversy exceeded $100 came to this Court and were resolved on the merits, or the appeals *455were dismissed in reliance on the statute.
¶21In sum, I conclude that the present circuit court, since it is a court inferior to the district court, is covered by the right of appeal granted and the finality provision imposed in the last sentence of Article VIII, § 9 of the Constitution.
¶22. Crooks v. Fourth District Court, 21 Utah 98, 59 P. 529 (1899); Smith v. District Court, 24 Utah 164, 66 P. 1065 (1901).
¶23. State v. Munger, Utah, 642 P.2d 721 (1982); Vernal City v. Critton, Utah, 565 P.2d 408 (1977); State v. Robinson, 23 Utah 2d 78, 457 P.2d 969 (1969); Salina City v. Freece, 61 Utah 574, 216 P. 1078 (1923); State v. Olsen, 18 Utah 484, 56 P. 22 (1899); Eureka City v. Wilson, 15 Utah 53, 48 P. 41 (1897).
¶24. State v. Olsen, 39 Utah 177, 115 P. 968 (1911).
¶25. Tucker v. Banks, Utah, 578 P.2d 13 (1978); Logan City v. Carlsen, Utah, 585 P.2d 449 (1978); Salt Lake City v. West Gallery, Inc., Utah, 573 P.2d 1283 (1978); State v. Sheldon, Utah, 545 P.2d 513 (1976); Salt Lake City v. Peters, 22 Utah 2d 127, 449 P.2d 652 (1969); Salt Lake City v. Granieri, 16 Utah 2d 245, 398 P.2d 888 (1965); Salt Lake City v. Perkins, 9 Utah 2d 317, 343 P.2d 1106 (1959); Salt Lake City v. Perkins, 122 Utah 43, 245 P.2d 1176 (1952); State v. Lyte, 75 Utah 283, 284 P. 1006 (1930).
¶26. State v. Stromquist, Utah, 639 P.2d 171, 172 n. 1 (1981); Layton City v. Glines, Utah, 616 P.2d 588, 589 n. 1 (1980).
¶27. Oregon Shortline R.R. v. District Court, 30 Utah 371, 85 P. 360 (1906); Hoffman v. Lewis, 31 Utah 179, 187, 87 P. 167, 170 (1906).
¶28. Silver City Mercantile Co. v. District Court, 57 Utah 365, 195 P. 194 (1920); Hoffman v. Lewis, 31 Utah 179, 87 P. 167 (1906).
¶29. Among the numerous cases citing Salt Lake City v. Lee are Logan City v. Blotter, 75 Utah 272, 284 P. 333 (1930); State v. Brown, 75 Utah 37, 282 P. 785 (1928); and State v. Roberts, 56 Utah 136, 190 P. 351 (1920). Also see Salt Lake City v. Perkins, 122 Utah 43, 245 P.2d 1176 (1952), and State v. Lyte, supra, note 4, which dismiss appeals to this Court on alternative statutory grounds in addition to the constitutional basis of Article VIII, § 9.
¶30. Buckner v. Main Realty and Ins. Co., 4 Utah 2d 124, 288 P.2d 786 (1955); Big Cottonwood Tanner Ditch Co. v. Kay, 108 Utah 110, 157 P.2d 795 (1945); Christensen v. Johnson, 90 Utah 273, 61 P.2d 597 (1936); Thomas v. District Court, 66 Utah 300, 242 P. 348 (1925); McCashland v. Keogh, 32 Utah 11, 88 P. 680 (1906); Garcia v. Free, 31 Utah 389, 88 P. 30 (1906).
¶31. This reasoning is not meant to cast doubt upon this Court’s jurisdiction to hear appeals in cases that began in the juvenile court, on which the Legislature has conferred jurisdiction “concurrent” with the district court, though specialized rather than general in its subject matter. Anderson v. Anderson, 18 Utah 2d 89, 92, 416 P.2d 308, 310 (1966); U.C.A., 1953, § 78-3a-16.
¶32Nor does this reasoning resolve the constitutionality of an appeal to the Supreme Court of district court decisions in controversies that began in an administrative agency and were taken directly to the district court for review. The constitutionality of additional review in such cases may depend on whether the district court is exercising (1) original jurisdiction in reviewing an administrative determination or (2) appellate jurisdiction in reviewing the decision of an “inferior .. . tribunal” exercising judicial power. Compare Baker v. Department of Registration, 78 Utah 424, 437-38, 3 P.2d 1082, 1088-89 (1931), with Industrial Commission v. Evans, 52 Utah 394, 402-03, 174 P. 825, 828-29 (1918).