No. 1979. | Tex. Crim. App. | Mar 7, 1900
Lead Opinion
Applicant applied to the county judge of Grayson County for a writ of habeas corpus, asking to be released from illegal imprisonment, alleging that applicant had previously been convicted in the Corporation Court of the city of Sherman, said city being situated in justice precinct No. 1, there being already in existence two justice of the peace courts in said precinct. Applicant charges that *584 the recorder before whom she was convicted of vagrancy is not an officer of the State of Texas, and not, in his official capacity, in any manner responsible to the said State; that one G.P. Webb has assumed to act as city attorney in said city of Sherman, or as a prosecuting attorney for said corporation court; that said corporation court was created under and by virtue of the act of the Twenty-sixth Legislature entitled "An act to establish and create in each of the cities, towns, and villages of this State a State court to be known as the corporation court of such city, town, or village, and to prescribe the jurisdiction and organization thereof, and to abolish municipal courts" (See Acts Twenty-sixth Legislature, page 40); and that said act is unconstitutional, in that it violates the judiciary article of our Constitution. Upon the hearing of the application, applicant was remanded to the custody of the officers of said city, holding that said applicant was legally held in custody under restraint by J.M. Blaine, chief of police of said city, from which order applicant appeals to this court.
This brings before us for decision the constitutionality of what is known as the "corporation court." This case, together with two others, was submitted by able argument and brief by G.P. Webb, Esq., and W.P. Ellison, Esq., at our late Tyler term, 1899, since which time we have devoted much thought and consideration to the able brief and argument made by them, and have reached the conclusion, so strenuously contended for, that the judiciary article of the Constitution clearly and explicitly authorizes the creation of municipal courts, and in such court applicant was convicted. Were it not for the amount of thought and research displayed by this court in previous decisions holding adversely to the above, and were it not, furthermore, for the importance of the results to flow, we would content ourselves with the above statement. The Constitution of this State, both before and since the amendment of 1891, clearly authorizes the creation of corporation courts. Section 1 of article 5 of the Constitution provides as follows: "The judicial power of this State shall be vested in one Supreme Court, in courts of civil appeals, in courts of criminal appeals, in district courts, in county courts, in commissioners courts, in courts of justices of the peace, and in such other courts as may be provided by law. The Criminal District Court of Galveston and Harris counties shall continue with the district, jurisdiction and organization now existing by law until otherwise provided by law. The Legislature may establish such other courts as it may deem necessary, and prescribe the jurisdiction and organization thereof, and may conform the jurisdiction of the district and other inferior courts thereto." This clause of the Constitution is broad enough to authorize the Legislature to create any court correlative with the district and inferior courts, and to give concurrent jurisdiction to said court, provided the Legislature shall conform the jurisdiction of the district and other inferior courts thereto. The Constitution creates one Supreme Court, courts of civil appeals, courts of criminal appeals, district courts, county courts, *585 commissioners courts, and courts of justices of the peace, and authorizes the continued existence of the Criminal District Court of Galveston and Harris counties. It is impossible to conceive how the Legislature could create a court and conform its jurisdiction to the "district and other inferior courts" unless said created court had a part, or was vested with a part, of the jurisdiction of the district or other inferior courts. Acting under the provisions of the above quoted article of the Constitution, the Legislature, in 1893, passed an act creating and establishing at the city of Dallas a criminal district court, which shall have and exercise all the criminal jurisdiction now vested in and exercised by the district courts of Dallas County. By this act said court was created, and various parties have been tried in said court, and some condemned to death; and this court has uniformly affirmed the verdict and judgment, where authorized under the law, and in no instance has the jurisdiction of said court ever been controverted; nor has it ever been contended that the Constitution did not authorize the creation of such a court. If the Constitution authorized the creation of a court under the jurisdiction of which one can be tried and hanged, certainly the Legislature has the power under the Constitution to create a court with power to fine parties for disorderly conduct. The same provision of the Constitution under which the Criminal District Court of Dallas County was created is the one under which the corporation courts throughout the State were created. This construction of the Constitution is controverted in Leach v. State, 36 Texas Criminal Reports, 250, Ex Parte Ginnochio, 30 Texas Criminal Appeals, 590, and Ex Parte Coombs, 38 Texas Criminal Reports, 654, and they seem to be based in part upon section 18 of article 5 of the Constitution, which provides that in each justice precinct "there shall be elected * * * one justice of the peace and one constable, each of whom shall hold his office for two years, and until his successor shall be elected and qualified; provided that in any precinct in which there may be a city of 8000 or more inhabitants there shall be elected two justices of the peace;" the contention in the above decisions being that this provision of the Constitution limits the justices of the peace to nine, at the utmost, in any county, and that any court having jurisdiction concurrent with the justice of the peace over criminal matters is unconstitutional, because in violation of section 18, for that can not be done indirectly which can not be done directly. In the first place, we do not think there is any conflict between sections 1 and 18, since there is as much difference between a corporation court authorized by the Twenty-sixth Legislature and a justice court as contemplated by the Constitution as there is between a justice court and a county court. The corporation court has simply the concurrent jurisdiction of the justice of the peace in criminal matters over State offenses within the territorial limits of the city, and also has jurisdiction of municipal affairs arising out of the enforcement of the ordinances of the city. The justice court has jurisdiction of criminal *586 matters coextensive with the limits of the county of all offenses of which the corporation court has jurisdiction, which jurisdiction is confined to the limits of the city; and, in addition, has jurisdiction to try civil matters; and also jurisdiction to try forcible entry and detainer cases. It therefore would be a strained construction to say that the corporation court created under the article in question was a justice court. Concede that section 18 is an inhibition against the creation of other justice courts, still we say that the creation of corporation courts is not creating another justice court, but is in strict line and consonance with the provisions of the Constitution authorizing the Legislature to create such other courts as may be provided by law, and adjust the jurisdiction of said courts to the jurisdiction of the district and other inferior courts. However, if there be a conflict between the two sections of the Constitution above quoted, then, by a well known rule of construction, the instrument must be given such a construction as will uphold, if possible, both provisions of the Constitution; that is, the instrument must be given a construction that will uphold that provision authorizing the creation of "such other courts," and also that authorizing the creation of the nine justice courts as contemplated by section 18. Can this be done? We clearly think so. Judge Cooley, in his work on Constitutional Limitations, in passing upon an apparent conflict in two provisions of the Constitution, uses this language: "If different portions seem to conflict, courts must harmonize them, if practicable, and must lean in favor of a construction which would render every word operative, rather than one which would make some words idle and nugatory. This rule is applicable with special force to written constitutions, in which the people will be presumed to have expressed themselves in careful and measured terms, corresponding with the immense importance of the powers delegated, leaving as little as possible to implication. It is scarcely conceivable that a case can arise where a court would be justified in declaring any portion of a written constitution nugatory because of ambiguity. One part may qualify another so as to restrict its operation, or apply it otherwise than the natural construction would require if it stood by itself; but one part is not to be allowed to defeat another, if by any reasonable construction the two can be made to stand together." Cool. Const. Lim., p. 72. Applying this rational rule of construction to the question before us, we find the following: That the Constitution of 1876 provided that the Legislature shall create "such other courts" as may be provided by law, The Constitution, as amended in 1891, provides, not only that the Legislature may create such other courts as may be provided by law, but goes further, and says that the Legislature shall adjust the jurisdiction of such courts to the jurisdiction of the district and other inferior courts. "It is scarcely conceivable that a case can arise where a court would be justified in declaring any portion of a written constitution nugatory because of ambiguity." There is no ambiguity *587 here, and to hold this provision of the amended Constitution to be nugatory would not be a judicial construction of a provision of the Constitution, but would be an abrogation of one of the clauses of the Constitution without any construction at all. It is also a well known rule of constitutional construction that the words employed have been used in their natural and ordinary meaning. "The framers of the Constitution and the people who adopt it must be understood to have employed words in their natural sense, and to have intended what they said. This is but saying that no forced or unnatural construction is to be put upon their language, and it seems so obvious a truism that one expects to see it universally accepted without question; but the attempt is made so often by interested subtlety and ingenious refinement to induce the courts to force from these instruments a meaning which their framers never held that it frequently becomes necessary to redeclare this fundamental maxim." Cool. Const. Lim., p. 73.
But it is earnestly insisted that the Constitution, wherein it authorizes the creation of other courts, had reference solely to what are ordinarily denominated "State courts." An effective answer to this proposition is contained in Sutherland on Statutory Construction, section 380, to wit: "As municipal corporations are vested with a portion of the authority which properly appertains to the sovereign power of the State, they must be confined to those powers which are clearly granted, as it is only by such grants that the government proper can delegate its just authority." We do not think it necessary to cite authorities on this question, but deem that the bare statement of the proposition should receive universal assent. However, Judge Cooley, in speaking of this matter, and discussing our American system of decentralization of power, — that is, wherein the States awarded part of their respective sovereign powers to the Federal government, and the States in turn awarded their power to the respective subdivisions of the State, — uses this language: "It is this [that is, this desire to decentralize power] that impels the several States, as if by common arrangement, to subdivide their territory into counties, towns, road, and school districts, and to confer powers of local legislation upon the people of each subdivision, and also to incorporate cities, boroughs, and villages wherever the circumstances and needs of a dense population seem to require other regulations than those which are needful for the rural districts. The system is one which almost seems a part of the very nature of the race to which we belong. A similar subdivision of the realm for the purposes of municipal government has existed in England from the earliest ages; and in America the first settlers, as if instinctively, adopted it in their frame of government, and no other has ever supplanted it, or even found advocates." Cool. Const. Lim., p. 223. Yet, is it not remarkable in the face of such statements from such learned authors, that any court would say that the Constitution which authorizes the creation "of such other courts as may be provided by law" should not have reference to the *588 organization of municipal courts, on the theory that the Constitution did not contemplate or take into consideration that municipalities were integral parts of the State? A citizen of the city of Dallas is not only a citizen of Dallas County, but is also a citizen of the great State of Texas; and to say that the Constitution of this State never contemplated that the Legislature should create a little court for a city is a construction to which we can not possibly agree. In Ex Parte Coombs, 38 Texas Criminal Reports, 655, we find this remarkable statement, to wit: "Then it may be asserted that the jurisdiction conferred upon municipal courts as a part of the judicial power of the State, finds its right of existence as such in the express provisions of the Constitutions of 1845, 1861, and 1866; and that such right or power was, by omission, abolished by the Constitution of 1869, and has never been incorporated into the judicial system since that time, being omitted from the Constitutions of 1869 and 1876; and in 1891 such corporation courts ceased to exist as a part of said judicial power, and this omission indicates an entire change of policy in this State in regard to the attitude of corporation courts. This omission of corporation courts in the re-enactment of the provisions of the Constitution with reference to the judicial power of this State repeals said courts, and they cease to exist as a part and parcel of the judicial power of Texas." Then we ask, in all seriousness, if this be true, what would have been the political condition existing in Texas if the present Constitution contained no express authority to create any court? or, in other words, if the present Constitution contained no judicial article whatever. If the remarkable statement were true, then, in that event, the Legislature would have no right to create corporation courts, or any other kind of courts. Under our form of government, the State Constitution is an instrument of limitations, and the Federal Constitution is an instrument of delegations; that is to say, the State Legislature can do anything not prohibited by the Federal or State Constitutions, and Congress can not do anything not authorized in its delegated power, to wit, the Federal Constitution. Then, if the present Constitution contained no judiciary article whatever, the people, by their inherent right and power, — which they have never surrendered to any one, — could create any and all character of courts not prohibited by the Federal Constitution. Upon this subject we find the following statement of the above rule laid down in Sutherland on Statutory Construction, section 4: "The whole legislative power delegated to the Federal government is vested in Congress, with the exceptions made in the Constitution, as in the instance of making treaties. Congress has only enumerated powers. The residue is retained by the States, and is vested by their Constitutions in their respective Legislatures, subject to restrictions and limitations in the Federal Constitution and that of the particular State. In creating a legislative department of a State government, and conferring upon it the legislative power, the people must be understood to have conferred the full and complete *589 power as it rests in and may be exercised by the sovereign power of any country, subject only to such restrictions as they may have seen fit to impose, and to the limitations which are contained in the Constitution of the United States." The fact that provisions of previous Constitutions may have contained express power authorizing the Legislature to create municipal or corporation courts and the present contains no such provision is no argument whatever that the omission of such express authority in the present Constitution is a repeal by implication of the authority heretofore existing in previous Constitutions. Each Constitution is a legal entity independent of, and not dependent upon, any previous Constitution. There might be some plausibility in the statement in the Coombs case, supra, if the rule of construction invoked was being applied to amendments of provisions of the Constitution. But this is not a rule of construction, in the nature of things, that can be applied to a new or independent Constitution. The doctrine of "expressio unius est exclusio alterius" does not apply to State Constitutions. While the doctrine may have some application to the Federal Constitution, it is directly at variance with the theory of State Constitutions, which are limitations upon the powers of government, and under which whatever power is not denied is deemed to exist. "To give but a single illustration, where instances might be multiplied indefinitely: Where a Constitution authorized and directed the Legislature to provide by law for `the establishment of schools through the State in such manner that the poor may be taught gratis,' it was held that the provision did not (as, upon the principle expressio unius, etc., in its misconceived sense, it undoubtedly would) imply a limitation upon the power of the Legislature to establish a common-school system, free to the rich as well as the poor." Endl. Interp. Stats., p. 752. Certainly, to say, as above stated, that because previous Constitutions eo nomine authorized the creation of municipal courts, and that the present Constitution does not so authorize same, is a repeal by implication, is a proposition that we can not, in the very nature of things, assent to; but believe it is at variance with every rule of statutory and constitutional construction.
It has been insisted that perhaps the provision of the corporation court bill, which deprives the county attorney of any fee for representing the State in said court, was unconstitutional. The writer of this opinion does not agree to this contention. However, this is a matter that does not legitimately come within the scope of this decision, but I am of opinion that the following authorities clearly uphold the provision in question: State v. Moore,
Affirmed. *590
Dissenting Opinion
During my absence the decision of this case was rendered. This accounts for my failure to then note my dissent. Judge HENDERSON agreed to the conclusion reached, and for his views referred to his late opinion in Ex Parte Wilbarger, ante, p. 514. I am somewhat at a loss to understand the attitude of my brethren in regard to the question at issue, as stated in their diverging opinions. But their views explain themselves. Had my Brother BROOKS contented himself with simply basing his opinion upon that expression in section 1 of article 5 which states the judicial power of this State shall be vested in certain named courts, "and in such other courts as may be provided by law," I could have remained silent, as my views upon this question have been fully expressed in Ex Parte Coombs, 38 Texas Criminal Reports, 648; Leach v. State, 36 Texas Criminal Reports, 248; Ex Parte Knox (Texas Criminal Appeals), 39 Southwestern Reporter, 670. The main question at issue in this case was the same as in those cases, and was thoroughly discussed by Judge HENDERSON and myself in the Coombs case, as well as by Judge Brown, for the Supreme Court, in Harris County v. Stewart,
Now, with reference to the statement of Judge BROOKS that "the doctrine of `expressio unius est exclusio alterius' does not apply to State Constitutions," I have not been able to find an authority that sustains this statement, nor does he cite one in support of it. He relies only upon Endlich on Interpretation of Statutes, page 752, latter clause of section 533. The section cited uses this language: "The maxim, `Expressio unius est exclusio alterius,' in the sense in which, as has been seen, it is properly applicable to the construction of statutes, is equally so in the interpretation of constitutional provisions. * * * It was said, however, by a late chief justice of Pennsylvania: `The expression of one thing in the Constitution is necessarily the exclusion of things not expressed. This I regard as especially true of constitutional provisions declaratory in their nature. The remark of Lord Bacon "that, as exceptions strengthen the force of a general law, so enumeration weakens as to things not enumerated," expresses a principle of common law applicable to the Constitution.' No doubt, `when the Constitution defines the circumstances under which a right may be exercised or a penalty imposed, the specification is an implied prohibition against legislative interference to add to the condition, or to extend the penalty to other cases.' But this proceeds upon the principle that, where a right is given, and the conditions of its exercise are prescribed, by a superior power, an inferior one, charged with acting under and in accordance with it, can not vary or add to those conditions, — a principle obviously alike applicable whether the superior power be the people themselves and the governing rule the Constitution, or whether the superior power be the Legislature and the governing rule a statute." In support of this, the work quoted from cites many authorities. Endl. on Interp. Stats., sec. 533, and authorities collated in notes under said section. See also section 397, et seq. The authorities cited by Judge BROOKS not only fail to support him, but are emphatically and unequivocally against the proposition. To the same effect is Potter's Dwarris on Statutes, page 674, where it is said: "Certain maxims and rules of construction adopted or discussed by Judge Story are deserving of consideration in this chapter, among which are `that a specification of particulars in an instrument is the exclusion of generals;' or, in other words, `the expression of one thing is the exclusion of another.' And Lord Bacon's remark is cited with approbation, viz., `that, as exception strengthens the force of a law in cases not excepted, so enumeration weakens it in cases not enumerated.'" In Story on Constitutions, section 448, this language is found: "Another rule of interpretation deserves consideration in regard to the Constitution. There are certain maxims which have found their way not only into judicial discussions, but into the business *593 of common life, as founded in common sense and common convenience. Thus it is often said that in an instrument a specification of particulars is an exclusion of generals, or the expression of one thing is the exclusion of another." This same author cites with approval the famous remark of Lord Bacon, which is copied in the text by the author. To the same effect is Long v. State, 1 Texas Criminal Appeals, 709, in which this question was at issue. Under the Constitution of 1869 the Legislature had authority to create criminal district courts, and, among other things, did create one for the cities of Waco, Marlin, and Calvert. Whether or not this court existed under the Constitution of 1876 was the issue. Section 1 of article 5 of the Constitution of 1876 provided, among other things, "that the Legislature may establish criminal district courts with such jurisdiction as it may prescribe, but no court shall be established unless the district includes a city containing at least 30,000 inhabitants, as ascertained by the census of the United States, or other official census: provided such town or city shall support such criminal district court when established, excepting out of this provision the criminal district court for the counties of Galveston and Harris." The court held that by reason of this language in the Constitution of 1876 the criminal district court of Waco, Marlin, and Calvert had been obliterated, and placed it upon the maxim, "Expressio unius est exclusio alterius." This doctrine is expressly recognized, so far as I have been able to ascertain, not only by all the courts known to Anglo-Saxon jurisprudence, but by all writers on constitutional law which I have been able to find. See also Black on Const. Law, page 282, sec. 127. All the authorities also lay down the proposition that the court may not only look to prior Constitutions and their history, but may go beyond, and look to the journals showing the proceedings of the conventions which framed the Constitutions, to ascertain the intent and meaning of those who framed the instrument. Cool. Const. Lim., p. 79, et seq.; Potter's Dwar. on Stats., pp. 657, 660; Endl. Interp. Stats., secs. 509, 518; 6 Am. and Eng. Enc. of Law, 2 ed., p. 930, and notes, for cited cases.
Judge BROOKS states that the rule of "expressio unius est exclusio alterius" applies to amendments of Constitutions, but denies the rule is applicable to a succeeding or new Constitution. If it applies to an amendment of a Constitution, it certainly would apply with equal force to a new Constitution, for the amendment takes the place of that portion of the Constitution which has been amended as thoroughly as the new Constitution could take the place of the old. In this respect Endlich on Interpretation of Statutes uses this language in section 517 of his work: "Statutory provisions which have expired or been repealed may, as has been seen, be looked at as aiding the construction of other provisions and enactments in pari materia. Similarly, clauses that have been eliminated from a Constitution by amendment may be referred to in aid of the interpretation of others originally *594
associated with them and remaining in force. And with equal propriety the differences between the provisions of a new Constitution and those of a previous one, and the construction placed upon the latter when in force, may be regarded by the courts in ascertaining the purpose and real meaning of the new provisions." In support of this text the author cites Houseman v. Commonwealth, 100 Pa. St., 222, 230; Buckelew's Const., Pa., pp. 45, 46; People v. Blodgett,
I have thus hurriedly and crudely stated some of my reasons for dissenting from the opinion rendered by Judge BROOKS. It would have afforded me pleasure, if the crowded condition of the docket would permit the time, to have more thoroughly gone into these matters.
Addendum
I agree to the conclusion reached, and, for an expression of my views on the question, refer to my opinion in Ex Parte Wilbarger, decided at the present term, ante, p. 514.